In his recent testimony before the Senate Judiciary Committee, Justice Anthony Kennedy forcefully argued for a pay increase for judges and against allowing TV cameras in the Supreme Court.
Perhaps needless to say, I disagree with Justice Kennedy on both issues. For my critique of arguments for a judicial pay increase, see here, here, and here. In addition to the various arguments for a pay increase that I have criticized in previous posts, Justice Kennedy adds the claim that "judges are being lured off the bench into academia" because law professors supposedly have higher salaries than judges do. Unfortunately for Kennedy, there is little if any proof that significant numbers of federal judges are in fact leaving the bench to become lawprofs. Indeed, it is far more common for professors to leave academia to become judges than vice versa. I can think of numerous prominent law professors who have left academia for the judiciary. The fact (noted in the article) that one district judge recently left the bench to become Dean of Duke Law School (one of the top 15-20 schools in the country) is hardly proof of a trend.
Moreover, as Paul Caron of Taxprof Blog (a supporter of judicial pay increases) points out, the average law professor at "full professor" rank makes about $136,000/year, almost $30,000 less than the salary of a federal district judge. Only 3 of 88 law schools responding to a recenty survey cited in Caron's post reported average full professor salaries higher than $165,000/year.
As for TV coverage of the Court, I remain unpersuaded by Kennedy's arguments against it, though I won't analyze the issue in detail here. Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments. According to the Legal Times story linked above:
If Congress did pass his bill [to require the Court to permit TV coverage of its proceedings], Specter said in a conciliatory tone, “it would be our opinion,” which could then be overtaken by “your opinion.” Specter did not explain the comment.
Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars that Congress does in fact have the constitutional authority to override the Supreme Court's preferences on this issue.
UPDATE: For analysis of yet another flaw in the case for a judicial pay increase, see this recent post by Ben Winograd on the Wall Street Journal Blog.
Related Posts (on one page):
- Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:
- Can Congress Force the Supreme Court to Televise its Oral Arguments?
- Can Congress Force the Supreme Court to Televise Proceedings?:
Need one understand more?
Notably, Justice Kennedy did not take issue with Congress' right to enact such legislation. (Although if he does have constitutional qualms, maybe he would think it unseemly to debate that issue in the forum of the Senate hearing.) Rather, his approach was to implore, with some passion, the senators not to take the action.
At any rate, Kennedy did not seem to get much sympathy for his objections. I see that Sens. Cornyn, Schumer, Durbin, Feingold and Grassley are cosponsors.
Would televised oral arguments look better or worse than artist's drawings such as this? I am not sure the court is ready for YouTube, but perhaps it should get ready. I think the justices' behavior would be altered by the presence of cameras, but only marginally.
I recall when Congress admitted cameras into the chambers for the first time, and members' behavior was certainly altered. Politicians adapted their natural camera-hogging instincts to the medium on the floor. But on balance the public became better informed despite the updated theatrics.
Most members of Congress adhered to the advice of Ronald Reagan, drawing on his Hollywood experience: "Learn your lines. Try not to bump into the furniture. And during the kissing scenes, keep your mouth closed."
Ultimately, my own opinion of the question of televising Supreme Court arguments is colored by self interest. I want to watch. Most readers here probably do, too.
Does Specter also think the executive branch is not required to obey a congressional statute? What makes SCOTUS above the law in the way it conducts its business?
Be careful citing/re-citing that SALT study in Paul's post. As I noted in the comments over there, although the statement regarding the numbers of schools is true, the survey omits almost all of the top law schools by which most federal judges looking to leave the bench would be recruited. (And, for that matter, many of the law schools from which judicial nominees are likely to come). Among the schools not responding are: Harvard, Yale, Stanford, Michigan, Notre Dame, Vanderbilt, Georgetown, and NYU -- but the list of absent schools is much longer and deeper still.
Guide to Judicial Clerkships
The median salary for judicial clerks in the 2003 graduating class from Indiana University School of Law – Indianapolis was $51050. Many law firms will give ...
indylaw.indiana.edu/career/judicialclerkship.htm - 40k - Cached - Similar pages
As far as televising the Court goes, Canada has been doing it for a long time with their Supreme Court. A CSPAN-type channel televises one or two oral arguments in full every week. Very rarely there is a clip of the Court on the news. Nothing seems to have risen and fallen on the decision to televise those proceedings, the heavens have not fallen.
My guess is public interest in the US would be about the same it appears to be in Canada, approximately zero, in following a couple hours of appellate argument.
I found the drawing by looking at Google's image search page today. I have no idea how long the link will be archived, or who hosts it.
http://www.cpac.ca/
Looks like some kind of commercial case, and they usually broadcast a criminal/constitutional appeal that I suspect is maybe more popular than insurance litigation. You be the judge! :) Not exactly primetime spot, even for CPAC.
The country's most complete coverage of select Supreme Court hearings and other landmark judicial proceedings.
Saturday, February 17 at 8AM ET / 5AM PT
Sunday, February 18 at 1AM ET / Saturday, February 17, 10PM PT
Phoenix Bulk Carriers Limited v. Kremikovtzi Trade also known as Kremikovski Trade - February 14, 2007
Case number 31347
Saturday, February 17 at 10:20AM ET / 7:20AM PT
Sunday, February 18 at 3:20AM ET / 12:20AM PT
Leaka Helena Delia Dickie v. Kenneth Earle Dickie - January 17, 2007
Case number 31350
Please note that regularly scheduled programming may be pre-empted due to live CPAC programming. Please check listings for rebroadcast dates and times.
Saturday 8am ET / 5am PT
Sunday 1am ET / Saturday 10pm PT
You be the judge! Watch Supreme Court cases in their entirety and reach your own verdict. Jurisprudence brings Canada’s highest court into your living room.
Even if Prof. Somin is completely correct, a "consensus of constitutional law scholars" does not possess the power to referee a dispute between two branches of government. If Congress passes a requirement, and the Supreme Court ignores it, that's pretty much where it ends in the real world. The Capitol Police will not be dispatched to clap Chief Justice Roberts in irons.
Must be that Scottish law thing.
Actually, it does include quite a few top schools, such as Texas and Duke. Moreover, very few federal judges (probably no more than 10-12 other than Supreme Court justices) have any real chance of getting hired as professors at law schools ranked in the Top 20-25. And many of those judges who do have such a chance (Ginsburg, Calabresi, Posner, etc.) left academia to become judges, so it's unlikely they'd go back, pay differences nothwithstanding).
I agree with cameras in the Supreme Court, but perhaps the justices can be coaxed into a short pilot project to see if it is as bad as they fear. I assume the real reason for the opposition is a concern by the justices that they will lose their anonymity if the arguments are televised, as members of the public would be more likely to recognize them when they go out in public.
It may be useful to allow all of those 'privileges' to even the scale, but such medicine may kill the patient.
The alternative is to evaluate Judicial salaries on their own without relationship to the congressional salaries. To this end, a formula taking onto account a basket of factors such as inflation, local housing and cost of living, law firm and law professor salaries could be adopted. All of these are proper factors, just not dispositive ones. Having a formula would remove a persistent cause that requires politicking by a branch that is not supposed to be engaged in significant politicking (not that Gore v. Bush is ancient memory).
Televising of the Supreme Court free of Constitutional wrangles, a judicial salary settlement/raise should be part of the bill requiring televising the proceedings. It is unlikely there would be much of a dispute to render the bill a mere 'opinion.'
I did so at some length in the 3 earlier posts linked at the start of this one.
As for the TV thing, I agree with Kennedy. I can easily imagine that, in time, the advocates will start to play to the cameras instead of the court. And, as soon as one of the judges lets an advocate have it for grandstanding (especially if it is Scalia, Roberts, Thomas, or Alito) the press will destroy them. Soon enough, the attorneys, not the judges, will run the Supreme Court, and the justices will let it happen because they are afriad of bad press. Maybe not Scalia, but the others for sure.
Duffy
1st year associates at good law firms make $135,000 - $160,000.
We think judges deserve about the same as 1st years? Weird.
So, one could stay on as a partner at Hogan and own 5 homes around the world, or become a judge and afford a small condo?
I assume your toungue was firmly in cheek when you cited the "broad consensus" of conlaw scholars, but looking over the posts on this subject, none of you has answered this question, though it has been asked at least three times:
You (and Mary Lederman in comments) have asserted that Congress's power to enact a cameras in the courtroom law comes from the regulations clause of Article III and the necessary &proper clause.
But the regulations clause of Art. III is limited to the Court's appellate jurisdiction. Why would the framers give a broad regulatory power, but leave the Court afloat in original jurisdiction cases? Isn't it more likely that the regulations have to do with what cases get to the Court and not with how the Court decides cases?
As for the necessary &proper clause - how could cameras in the courtroom be necessary &proper to carry into execution the judicial power if the justices themselves do not believe it is or want it?
Moreover, very few federal judges (probably no more than 10-12 other than Supreme Court justices) have any real chance of getting hired as professors at law schools ranked in the Top 20-25.
Ilya, doesn't that illustrate Justice Kennedy's point that the federal judiciary isn't getting the best legal minds?
I am not sure that "desire for power" is one of the criteria that we should be using for Supreme Court justices. Actually, I thought so-called conservatives were against that kind of incentive for federal judges.
I think the Luttig example is telling. The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.
A students become professors,
B students become judges,
C students can buy and sell the profs and judges.
Old news.
I respectfully disagree with the notion that public servants should be compared to private sector employees. The many devotees of the free market on this site can exlain the sanctity of the market better than I. Suffice it to say that associates and partners get paid so astronomically purely due to market forces. The more appropriate perspective, I humbly believe, is: why are 1st year associates making as much as federal judges? But I still think it's a false comparison.
Civil service is out of the free market realm. These judges are given extraordinary powers in our society and have all the prestige and job security in the world. I believe that that more than compensates for the less than stellar compensation.
No doubt because the “broad cross-ideological consensus” consists of a whopping four people.
Some judges are underpaid based on their talents and others, I am sure, are overpaid. We can reduce the number that are underpaid but not the number who are overpaid.
Could we offer them more money if, in exchange, they agreed to quit after a set number of years?
Does Specter also think the executive branch is not required to obey a congressional statute? What makes SCOTUS above the law in the way it conducts its business
Actually it's quite an interesting question whether Congress can constitutionally enact a law requiring TV cameras in the Oval Office (and let's say they have the votes to override the inevitable veto).
The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.
You are joking right? The vast majority of Americans manage to put their children through school very well on FAR, FAR less than $135,000 a year. I'm sorry if you are making 4 times the average for a family of four, and pleading poverty, the reaction by the American public is not going to be in your favor. Now, that doesn't get rid of the argument that it means the bench can no longer attract the best and brightest, but pleading poverty for Federal Judges gets you nowhere with me.
I totally agree. While judicial salaries will never be competitive with major law firms (nor should they be), judicial salaries are at the level where being a judge is inconsistent with providing a top notch education for your children (well maybe one kid, but if you have 3 or 4, forget it). If you want minimally qualified judges, in the sense of being admitted to the bar for the requisite number of years, you'll always be able to get that. At the other extreme, superstars like Roberts are probably not motivated all that much by money, though you have to pay them enough. But if you want highly qualified (but sub-superstar) candidates instead of minimally qualified candidates, then I think you either raise judicial salaries, or maybe have a Chinese style "1 kid only" policy for members of the bench.
[and obviously I'm kidding about the latter].
I don't know; perhaps. But I'm afraid that's impossible. That is, I don't believe one can implement a "free market approach" to a public-sector industry. If so, that'd mean instead of congress passing a law allowing, say, a 15% raise, we'd have to make the judiciary a for-profit industry where supply-and-demand concerns dominate. How is that possible?
Hey, that just gave me a brilliant idea to kick start tax reform. Supreme Court proceedings will be required to be televised, and the bill will also require all members of Congress to watch all tax related appeals (we'll quiz them on it afterwards to make sure they're paying attention). Now that will be an incentive for them to simplify the tax code.
I think that would be a reasonable position, yes, so long as the nominal salary was not lowered by more than the deflation.
It's a number, there's nothing to interpret.
Sorry, but unlike most people, highly qualified candidates for the bench are capable of earning enough money to send all their kids to top notch colleges. I don't think one can just ignore that fact and set judicial salaries on the assumption that they don't have that option. If I had kids I'd want them to have the best education possible and not to be sneered at for taking the cost of that into consideration when deciding on my career options.
I'm not sneering at the notion of sending your children to a top college. I'm sneering at the notion that it's impossible to do on a salary of $165,000. And frankly, I don't think you need to take out loans to send 1 or 2 kids to a top college at a salary that high. I understand what you're saying about having 3 or 4 kids, but how many people have that many children these days? But assuming for a second, you do need a salary that high, I will second Ed's point. Why should we necessarily pay for that? Let them go to the big high law firm if they want. There are a lot of benefits to being a judge; respect, the ability to leave and get a high-paying job if you want, the ability to set your own hours (and on the S.Ct. the ability to set your own workload), the ability to take side work as a law prof.
I think what many are really complaining about is that it's hard to get highly qualified "young" candidates who will be on the bench forever. So What? That might actually be a good thing.
Finally, getting more candidates who have worked "in the trenches" so to speak; ie., not big firm law, might be a good thing.
I'm curious. Someone has had ten to eighteen years of making $150,000+ yet they are not prepared to send their children to a top notch school. How can that person possibly be suitable for a position on the federal bench. Such a substantial lack of foresight, such a lack of judgement, and possibly lack of intelligence, should be a major red flag.
To answer your other question, we don't want good lawyers on the bench, we want good judges. The qualifications are not the same.
No, the power to regulate what cases get to the Court is given to Congress by the phrase, in the same Clause, that gives it the power to make "exceptions" to the Court's appellate jurisdiction. Moreover, the regulations Clause could address both jurisdiction AND procedural issues.
Ilya, doesn't that illustrate Justice Kennedy's point that the federal judiciary isn't getting the best legal minds?
No, "best legal minds" is not the same thing as "best legal scholars." Most judges come from practitioner backgrounds, and so have done little or no scholarship that would qualify them for an academic job. But that doesn't mean they aren't top quality lawyers.
As I have argued in my earlier posts on this subject, federal judges do in fact get total compensation similar to what the free market pays the best private sector lawyers. Although they get less money, they have more power, prestige, pension rights and job security, work fewer hours, and have more interesting work. That's why VERY FEW judges leave the bench for the private sector, while many outstanding private sector lawyers would love to become federal judges, despite the lower (monetary) compensation.
Actually, since Judge Luttig has had such a high profile, he is a good example of someone for whom career factors other than money can be in play. Doubtless the compensation at Boeing was attractive, but so was the prospect of elevation to the Supreme Court.
However, despite the judge's excellent qualifications, he was passed over twice by President Bush. Soon after, a case Luttig was handling (Padilla) led him to issue an extraordinary rebuke of the executive's legal tactics -- in a big case that mattered seriously to Bush.
Surely Luttig knew then that his judicial career had maxed out, at least during this administration. So it is not surprising that he opted to earn the big bucks. But does anyone think he would have turned down a seat on the highest court?
If this isn't a straight-forward application of public choice, I don't know what is...