How Much Should Federal Judges Be Paid?:
Chief Justice Roberts' Year-End Report on the Federal Judiciary focuses on the salaries of federal judges:
My second thought is that it's unfortunate that federal judicial salaries are flat across positions. District court judges all earn one salary, circuit court judges all earn another. This means that district court judges earn the same $165k regardless of where they sit, how many cases they hear, and whether they are the living reincarnation of Learned Hand or an embarrassment to the bench. So long as raising the salary for any judge involves raising the salary for all of them, judicial salaries will be much too low for some and too high for others. Of course, uniformity serves important interests, both practical (how do you measure judicial quality?) and constitutional (see Article III, Section I). But I wonder whether there might be some way of breaking out of the uniform salary bind without interfering with those interests. For example, would be it be out of the question to pay judges in districts with higher costs of living more than judges in less expensive districts? Perhaps this is unrealistic or unfeasible, but I wonder if it might help address the Chief Justice's concerns without requiring Congress to raise salaries across the board.
This is usually the point at which many will put down the annual report and return to the Rose Bowl, but bear with me long enough to consider just three very revealing charts prepared by the Administrative Office of the United States Courts.I have two thoughts in response. First, while I'm sympathetic to the Chief Justice's basic argument, I think these three comparisons are fairly weak. Law dean and top prof salaries have gone up a great deal in the last 35 years in response to the changing nature of deanships and a developing market for "star" faculty members. Neither change has an analog in the nature of judgeships. Similarly, the decline in judicial pay in real terms since 1969 occurred largely during the inflationary period of 1969-1975; since 1975, salaries have stayed roughly within the same zone in real terms. Finally, the higher percentage of federal judges from the public sector could have many causes, of which judicial salaries is only one, and I'm not sure the change is necessarily a bad thing.
The first shows that, in 1969, federal district judges made 21% more than the dean at a top law school and 43% more than its senior law professors. Today, federal district judges are paid substantially less than — about half — what the deans and senior law professors at top schools are paid. The next chart shows how federal judges have fared compared not to those in the legal profession, but to U.S. workers in general. Adjusted for inflation, the average U.S. worker's wages have risen 17.8% in real terms since 1969. Federal judicial pay has declined 23.9% — creating a 41.7% gap.
Some of you may be thinking — "So what? We are still able to find lawyers who want to be judges." But look at the next and last chart. An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.
My second thought is that it's unfortunate that federal judicial salaries are flat across positions. District court judges all earn one salary, circuit court judges all earn another. This means that district court judges earn the same $165k regardless of where they sit, how many cases they hear, and whether they are the living reincarnation of Learned Hand or an embarrassment to the bench. So long as raising the salary for any judge involves raising the salary for all of them, judicial salaries will be much too low for some and too high for others. Of course, uniformity serves important interests, both practical (how do you measure judicial quality?) and constitutional (see Article III, Section I). But I wonder whether there might be some way of breaking out of the uniform salary bind without interfering with those interests. For example, would be it be out of the question to pay judges in districts with higher costs of living more than judges in less expensive districts? Perhaps this is unrealistic or unfeasible, but I wonder if it might help address the Chief Justice's concerns without requiring Congress to raise salaries across the board.
Related Posts (on one page):
- Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":
- How Much Should Federal Judges Be Paid?:
Cost of living in a region is adjusted for in judicial compensation, but only according to GAO tables. Thus, the adjustment is both wildly unrealistic (13% more for Manhattan than Peoria) and internally dispoarate (the adjustment for Houston, Texas, is more than for Washington, D.C.!).
Have to disagree with you on one thing. More judges from the public sector is, in my opinion, a very bad thing. You have judges who are very likely to be more favorable to the government, and judges who are very unlikely to realize the practicalities of running a law office, ie., that you have to make a profit.
Also, I'll make the same suggestion I made at Balkinization: what if we increase the number of district court judges, thereby giving them greater leisure time in lieu of a pay increase. This has the extra public benefit of reducing the congestion in the courts and the delays associated with that.
Show me any job that you get at age 50, work for 15 years and receive your full, final, six-figure salary as a pension, and I will gladly sign up. Not to mention the health care is terrific; the hours are extremely flexible, and you can't get fired no matter how bad you are as long as you don't steal.
Federal judges are bigger whiners than professional athletes.
How many judges actually retire at 65? And how many hours do you think most federal judges work?
HAB,
Do you have a link to sources on that?
Hattio,
Do you have evidence of that? And why do federal judges need to be sensitive to the profit-making concerns of private law firm lawyers?
OTOH, my experience with gov't workers is that they have very few illusions about government.
The best measure of whether a group is underpaid is to look at what percentage of them quit to find better paying jobs elsewhere. It appears to be low for federal judges. Does anyone have any data?
I agree with the earlier poster, a judiciary filled with former civil servants is a very bad thing.
Thanks to Ed Hartnett, I see that the first Congress thought that different judges of the same position could receive different salaries in different regions. See 1 stat 72.
That suggests that at least they didn't think that Article III Section 1 commanded a uniform salary across districts. I think no constitutional purpose is served by failing to account for at least some differences between different offices.
Orin, you put forward one theory: a market for star professors. This does not explain why even associates at law firms are now making so much more money.
I posit that there is some sort of inflationary effect going on but one that does not involve 'general rise in prices' but rather a general rise in goods&services insulated from exchange-rate effects. Let us call a measure of such an effect the DPI--domestic price index.
Perhaps we should address why the DPI is so much higher than other inflation measures such as the CPI and address this so as to not encounter the problem of having to adjust government compensation faster than the nominal average of wage growth....
1) There was no reasonable amount of money which would have changed the consideration, given that salaries in the tens of millions are *not* reasonable for judges.
2) There are more than enough people willing to replace Judge Luttig who are highly qualified for the position.
Quick: raise your hand if you went to law school, and feel like the top faculty on your school would turn down a federal judgeship? If you're at a law firm, how many of the smarter partners in your firm would turn one down?
Now, if Justice Roberts' view is that we're not getting enough Judges of a CERTAIN MINDSET, i.e. those that are capitalist, conservative, like money, and sympathize with corporate interests, then maybe he has a point, but even there you would have to *substantially* raise salaries, to at least approximately what law firm partners make (+$500,000 per year), which seems unreasonable just to capture more people of a particular temperment.
Furthermore, Justice Roberts himself had no qualms going from a job paying around $1 million or more to DC Circuit Judge to Supreme Court Justice - does that not defeat his point?
In all, the prestige, the nobility, the honor to serve, the power, and the job security of a federal clerkship makes the position more than competitive vis a vis alternatives to top lawyers, and thus there is no need to increase salaries.
I would also be interested to know to what extent the change in where judges are coming from (private sector versus public sector) reflects other factors besides salary, such as changes in who is being looked at or who is being nominated.
I doubt you know many people who have made a half million a year for a number of years and are 50+ years of age.
I think it would be wonderful for judges to appreciate the "realities of the practice of law." I can only hope they will also appreciate the realities of the operation of any business and the economic effect of ignorant interference. I speculate lawyers in private practice have a firmer grasp of these realities than those in government.
First, if all you meant to discredit was my anecdotal evidence, then I think my general point still stands.
Furthermore, the fact that serving the Executive as well as the Judiciary was worth a huge paycut, I do not see how that by itself would undermine my argument. My choice of Roberts, rather than the numerous numbers of other federal judges who left partnership and GC positions to assume the bench, was to undermine the credibility of personal authority, and I think your point empowers, rather than undermines, my own.
Furthermore, Roberts left government service in 1986, where he had served as a special assistant to the AG and as a associate counsel to the President. He wasn't fired, he simply wanted to move into the private sector.
He then came back in 1988 for the position of Deputy Solicitor General, which, along with Federal Judge, is one of those "special jobs" that I think you'd find very few law professors or private litigators (particularly ones who focus in constitutional or appellate law) would turn down, even if they are making a Wachtell-partner salary. His practice from 1988-1992 consisted solely of arguing in front of the Supreme Court, and then when Clinton came in office, he immediately went to Hogan and made a salary of over $1 million per year.
Also, to the degree that he accepted the "Deputy Solicitor" position after his two year stint at Hogan, I do not believe it would have been particularly likely for Roberts to have been able to lead the appellate practice at Hogan without that experience. Nothing leads me to believe that he would have gotten the equivalent experience practicing in the Supreme Court compared to the 2 or 3 cases Hogan could hope to get each year, for instance. So the Deputy Solicitor job, while very special, is also a prerequisite for the private career that Roberts' next 11 years would track.
After Bush got elected, he did not "immediately" return to government service, though he could have easily have started on the first day of the new administration. Instead, he stayed at Hogan through his 2001, and then his 2003, nominations. It is unlikely that returning to government service, particularly returning as Deputy Solicitor, would have damaged his chances for nomination.
In other words, after a 5 year service of prestigious, but fairly traditional, government service, he spent the rest of his career either in private practice or in the handful of "special jobs" that people just do not turn down. Though my anecdote, presuming that "federal judge" is a "special job," does not BY ITSELF prove my point, nothing in his bio discredits it.
As for evidence that former government employees tend to be pro-gevernment, I only have anecdotal evidence. As to why judges should be attuned to the practicality of running a law office, well, if they're not, they can impose impossible demands on attorneys and that hampers the administration of justice. We have a local judge who always requests more information, no matter the amount of research you've done. Now, it is obviously wise to research and have answers to all the questions a judge is likely to ask. But, no one has the time to research and answer all the questions a judge could possibly ask. Moreover, some of the questions are just ridiculous.
I think it is foolish to evaluate the issue of judicial pay by only looking at the number of people willing to take the position. I know many recent law grads will apply to be a judge if they had a chance. Thus, we must look at the quality of the applicants (and judges who leave) relative to the pay offered. Of course, as Orin points out, how do you measure quality?
Unfortunately, this latter point isn't easy to measure. If there is a talented, well-off lawyer who doesn't want the pay cut of becoming a judge, it's unlikely that the situation would progress to the point where the president would nominate that person and the person would turn it down.
I don't think Roberts means to say that the judiciary should compete outright with the private sector for talented lawyers, only that if judicial salaries were significantly higher, the judiciary would get significantly more of the types that "we" want.
On the other hand, there are always stories out there like Glen Nager of Jones Day hiring Jack Abramoff to get him a judgeship... I question how typical or atypical John Roberts's story is.
Really, though, my concern is whether the federal judiciary is a revolving door into the private sector. If judges start deciding cases in ways that favor certain businesses, with the understanding that they will get high-paid positions in (or representing) those businesses later, then we have a real problem. This is a common accusation regarding executive branch employees, and it could apply to the judiciary in theory. I haven't seen any evidence that it does, though. Maybe that's because of the pensions. If judicial positions are most attractive at the end of a person's career, the revolving door problem doesn't come up.
Or, along those lines, a special income tax for partners, deans, and law profs that is then redistributed to federal judges. Constitutional crisis solved!
One is prestige, and I think most people would agree (certainly most lawyers) that there are few, if any, law jobs more prestigous than a federal judgeship.
Another is power, or to be more charitable, influence over the development of the law. Outside of a position in the cabinet or Congress or the presidency, I doubt there are more influential positions for a lawyer than as a federal judge.
A third is lifestyle. Some federal judges may work hard and have a heavy caseload, but there is no penalty for not doing so, and many do not. You couldn't get away with this in private practice or in the public sector -- really anywhere that you didn't have life tenure.
I'm not sure why you think I'm trying to "discredit" you. It's just that what you say doesn't match my understanding. As for your guesses about what John Roberts' career might have looked like if he hadn't worked in the SG's office, it just doesn't seem realistic or accurate to me. I only spent a summer at Hogan, and it was after Roberts was at the SG's office, but I tend to think that he could have become the head of that practice group without his government experience (as Barrett Prettyman did).
My law partner, who has been litigating for 30 years, complains about the timidity of new judges and prefers an experienced one, regardless of their politics.
Perhaps we should set up a judicial aptitude test which could be taken by attorneys aspiring to be a judge. There are many attorneys whose specialties lead them not to be considered for the bench who might make excellent judges.
The two questions that need to be asked are 1) how many people that are recruited to be federal judges turn it down for monetary reasons, and 2) how many federal judges on the bench resign and go back into private practice for monetary reasons? If both of these numbers are high, salaries should go up.
I suspect the latter number is higher than it used to be, but then lucrative jobs as a private arbitrator (which seems to be where most former judges go) is a relatively new thing. Is the number high enough to worry about it? Why assume the desirable attrition rate is zero? Even if attrition rose to 15%, why would we want to give every judge a raise just to keep attrition under 5% or under 1%? Perhaps we should just give judges a raise after each 5 years of service, but have the raises disappear if the judges take senior status (their pension would be the same as it is now, absent any retention raises).
Is there any data on the former number? I suspect there are not a lot of qualified lawyers (even in private practice) who would turn down a federal judgeship. I also suspect this number is not high enough to be worth raising every sitting judge's salary.
In any event, I see no reason for supreme court justices to get a raise, irrespective of whether lower court judges get one. None has ever resigned to make more money, and the number who have turned down the job in the last 50 years can probably be counted on one hand. There is no shortage of qualified applicants who would gladly accept.
I know a partner who did, in his late 40s, because of the money. There were two problems. First, the income was too low for someone who still had kids in college. Second, and perhaps more troubling, was the retirement package.
But, you say, federal judges have one of the best packages around! Yes, they do--but only for as long as you live after you take senior status. If you're concerned about the possibility that your spouse will outlive you, or that personal circumstances will force you to step down before you hit the Rule of 80, you're far better off making a high-six- or low-seven-figure salary as a law partner and saving.
Before you protest that this partner was foolish, or that he wouldn't actually have become a judge: he was offered the opportunity again, once he'd seen his kids through school, socked away a nice nest egg, and was closer to senior-status-age. He's a federal district judge now, having been confirmed in his early 60s.
I would argue that it is a loss to the bench that he wasn't on it for an additional fifteen years. And I would further argue that there are other well-qualified prospective judges who turn down a seat the way he did, but never get the opportunity again.
I don't know whether the solution is better locality pay, better pensions for those who step down or die early, across-the-board salary increases, or a scaled system wherein judges get raises as they've been on the bench longer. But I agree fully with Chief Justice Roberts that something ought to be done.
No, because being a Supreme Court Justice is vastly more prestigious (and probably rewarding) than being a lower court judge. The recruiting equation is entirely different.
No, the reason most federal judges are drawn from the public sector is that those who appoint and confirm them believe, correctly (but not infallibly), that people who have spent most of their lives working for the government will be more sympathetic to the government and less likely to invoke such quaint, anti-democratic doctrines as enumerated powers, federalism, or -- God forbid -- natural rights in cases where the power of government is challenged by mere citizens.
It's a big problem, but I don't think it should be solved by taxation. Workers should be paid properly in the first place, and obscenely large pay packages for top management should cause customers (including students), shareholders, and potential employees to ask what on earth is going on. The current compensation situation is bizarre by recent historical standards, and there's no reason to think it's permanent.
Note that a lot of the excuses people give for needing high pay -- tuition and real estate prices among them -- might be lower if it weren't for all the money sloshing around in the system. I've seen universities spend money on some pretty pointless things, such as flat-screen TVs in cafeterias, and we all know about inflated house prices. Maybe some of that excess could be removed without any loss in real living standards.
But regardless, the market is a great thing but it is not always the only thing that should determine salaries. Federal judges deserved to be paid more, much more, than they currently make. [I think Congressman and Senators do as well by the way but some will disagree. The President makes exactly what he deserves: 400K, and I say that about Presidents in general, not this particular one :)] Federal judges work very, very hard for the most part, and what's wrong with paying them more when they deserve it?
As to the comment re judges being "bigger whiners than professional athletes," the comment is silly. Professional athletes make a ton of money; thus, they have less to whine about. Tangential point: I do find it very funny that it is almost always the case that those who are "free market purists" are the same people who bitch and moan about how much athletes make and about how the evil unions destroyed this and that, when it was the professional sports unions that actually brought free market economics to sports. Sports players are worth every penny they are paid: Who do you think is writing their checks? People who make a lot more money from what the players are doing. And if you believe the BS about how all these owners are losing money, I have a beautiful bridge in Manhattan that I'd just love to sell you.
Professional athletes have a lot to whine about, mostly child support and drug testing. Also, after paying agents, personal trainers, stylists, bodyguards, and a four-man entourage, the money is not all its cracked up to be.
Unlike professional athletes, one can be a judge well into their 80s. Not even Julio Franco can play baseball that long.
Also, he is wrong when he assumes that that state judges who become federal judges don't have practice experience. Contrary to Roberts' assumption, state court judges don't start in that position out of law school. While too many state court judges are ex-prosecutors, many others come from small and medium-sized firms.
Picking federal judges from the ranks of state court justices would give the federal courts a better cross section of practice experience than picking someone from a white shoe law firm. Given that tiny percentage of lawyers who practice in large firms, my guess is that they are very well represented on the federal bench.
Also, is it a crisis that 6-8 federal judges resign every year? That seems like very low turnover to me. Many PD and prosecutors offices would love to have such miniscule turnover. If "high" turnover dictates where money should go, I should expect a big pay raise soon. Oh, but I forgot, I'm not a member of the "practicing bar" according to HRH Roberts.
Increased pay for working in more popular areas doesn't make sense. Judges in high-rent areas get the benefits of living in those areas. If they don't think the benefits of living in Manhatten or San Francisco are worth the costs, they should work elsewhere. They can also commute from less expensive areas, just like millions of others do (including the courthouse staff).
Maybe we need to loosen residency requirements for small expensive districts like Manhatten, but all other employees in federal courthouses make due with far less money than the judges do, so I don't buy that it's impossible to support a family on a judge's salary.
Judge Roberts also makes a short-sighted point. He says that the cost is small. But raising federal judges pay will have an influence on the entire public sector legal market. When the pay for federal judges goes up, it will open room for increased pay for USA's and AUSA's, which will increase room for increased pay for federal PD's, and court staff.
Also, informally or formally, state judicial pay is set in comparison to federal judicial pay. Once federal pay goes up, state court judges will use it as a benchmark. When state judicial pay increases, payment to other state lawyers increases. So increasing judicial pay will cause ripples through the entire public sector legal market.
Personally, I think it's good to increase pay in the entire public sector legal market. That's the only valid reason I see for raising federal judicial pay. But Roberts can't make this argument because it would undercut his argument about the allegedly low cost of a judicial pay raise.
The real question is how many people campaign to become federal judges vs. how many are recruited.
The current approach tends to draw in folks who have gotten their kids out of the house - an older crowd. Having a skew in favor of the elders helps perpetuate age discrimination - willingness to send folks (in the 17-47 age range) off to war without adequate consideration, for example.
With adequate transparency, the judiciary should be allowed to work part time, as professors, lawyers, etc., so younger folks could act as judges while paying mortgages and college tuitions.
It might also make sense to have reputable foundations help finance the judges in need, with adequate disclosure (which is another way of saying let federal judges work part time - which they already do to some degree).
This is a statement, not an argument. Why? First of all, what is the measure for what they "deserve" to be paid? How do you quantify that? Some would say they deserve to be paid less than they are paid now. We are currently paying each supreme court justice more than $2000 per case they decide, based on their 2006-2007 docket. Isn't that enough?
Second, why would we pay judges more than we need to pay them to recruit and retain them? Who else in society is paid more than it would take to recruit and/or retain them? The principal reason people get a raise is that they could get more elsewhere and are likely to go if not paid more, or you are having trouble recruiting people to the position in the first place. That's even more true when the money to pay them comes from taxpayers.
The president is a poor comparison, because the nature of the job is so unique that money has got nothing to do whether anyone would want it. Not to mention the fact that the president gets $400K after he gets the following things comp'ed: his house, vacation home (Camp David), food, travel, the best medical care, a $100K clothing allowance and just about everything you would ever spend your salary on, except birthday and Christmas gifts and your kids' college tuition.
Just about every CEO in the country.
Actually the pay difference between law school deans and judges is probably dwarfed by the difference between the chairman of GE and the Chairman of the Joint Chiefs of Staff of the military.
Robert's responsibility is judges, so it's appropriate for him to champion that cause. But we shouldn't forget it's part of a much larger pattern.
Which Prettyman? I don't know about Sr., but Jr. certainly has an advantage given the fact that his father's name is on the DC Circuit's courthouse.
The only (other) biglaw firm that I can think of where the leader of the SCt and Appellate group didnt have significant outside SCt experience is Jones Day, and thats because of their unusual "spread the wealth" - now guys like Taranto might be different (I'm not sure about his background), and a guy like Goldstein is different, but I think maybe that shows us that we both may be wrong - that when you have people as highly qualified as the regulars on the Supreme Court bar, there is no "typical" or "atypical" path.
CEO's are not paid by taxpayers, they are paid by their shareholders. And it's far from clear they are paid more than it would take to retain them, since the best ones could easily jump ship to better paying companies, banks or hedge funds, and frequently do. The best judges rarely jump ship. Even the worst judges rarely jump ship. So, why pay them more?
Where salaries affect decisions are at the margins, of course. The brilliant young lawyer who's a young partner at a major law firm may be a great candidate for the bench, but at current salaries, he may look at his three kids' educational expenses and his family's long-term economic security and just say, "Nope, can't afford it." Not everyone will refuse -- some might be willing to send her kids to a state university instead of Harvard so she could engage in public service on the bench. But some will; and if fewer would if the salary rate were more competitive, then that's a larger pool, which presumably will over time raise the quality of sitting judges as compared to what it otherwise would have been. Likewise, some number of sitting judges leave the bench because of financial concerns. That's almost certainly, on average, a bad thing if you believe, as I do, that judges become better with experience as a general rule.
Ummm, no, it doesn't. The number of federal trial and appellate judgeships is set by statute. Vacancies may take a while to fill, but they eventually do get filled; the positions don't disappear because there aren't willing applicants, nor do new positions appear if there is an excess.
High ranking federal officials can parlay their positions into high paying pivate jobs. The question of salary applies to those who don't. Can a federal judge also parlay his position into a big salary in the private sector?
Many top givernment officials serve in a succession of very responsible positions for longer than the 15 years necessary for a 65 year-old judge to retire on full salary. Temporary?
In yesterday's Sacramento Bee a federal judge who served 16 years implies that that he is walking away from his pension. IS THE JUDGE BEING HONEST? What will his pension be after 16 years?
(BTW I received a flawed opinion from the Ninth Circuit last week - so I'm not in the mood to hear how that should be earning $300k when they cannot even copy/paste authorities correctly.)
Sacramento federal judge to lead Duke's law school
Chief U.S. District Judge David F. Levi, who has served on Sacramento's federal bench for more than 16 years, is stepping down to become dean of the law school at Duke University in Durham, N.C..
Levi, 55, was traveling Wednesday and could not be reached. As a District Court judge he is paid $165,200 annually.
He was quoted Wednesday in a Wall Street Journal blog as saying: "Judges are paid poorly compared to law school deans and law professors. I made the judgment that I could afford to do this, even though I was losing whatever prospect of a pension there was."