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Supreme Court Salaries:

Lithwick:

Well, Justice Anthony Kennedy is, for one. As he testified just last month before the Senate Judiciary Committee, "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before." The fact is that if the market is working to drive associate salaries higher and higher, the lack of a market is now ensuring that a first-year associate at a law firm who clerked on the court will earn more next year than Justice Antonin Scalia ($203,000), Special Prosecutor Patrick Fitzgerald ($140,300), or a well-paid public defender ($75,000). And whether or not those salary disparities make you weep in sympathy, it's hard to dispute the justices' claim that the opportunity cost of staying on the bench has become almost impossible to ignore.

Well, Justice Kennedy, here's an option for you: resign! I'm sure you can make a lot more than some young associate working for a firm specializing in Supreme Court litigation, or, for that matter, as an arbitrator. Indeed, I'd speculate that you could easily make 3 or 4 million dollars a year! What, you don't want to give up the power and prestige that comes with being a Supreme Court Justice? Than maybe there is NOTHING wrong with current salaries, at least at the Supreme Court level. Indeed, I'd guess that none of the the Justices would resign even if they had to take, say, a (n unconstitutional) 25% percent pay cut.

In fact, I'm not so sure it wouldn't be healthy if we had more rotation between the federal courts and private practice. Sure, the judges have life tenure, but does that necessarily mean we want all federal judges to necessarily consider it a job for life? Michael Luttig (who recently resigned to take a high-paying private sector job) was appointed to the Fourth Circuit in his late 30s. In an ideal world, should a Bush I appointee still be ruling on cases in 2040? On the other hand, we don't want judges ruling on cases with an eye toward pleasing future private sector employers. But the idea that an occasional 50-something federal judge like Luttig, having already served on the bench for a decade and a half, decides that there's something else he'd rather do with the rest of his life, doesn't especially disturb me. (In fact, I know a relatively young man who was approached about a federal judgeship, but declined the offer because he thought it meant he'd be morally obligated to stay in that job for decades, a commitment he didn't want to make. Would it really be so terrible if young, bright, ambitious, attorneys saw federal judging as a thing to do for a decade or two?)

UPDATE: Given that it's not a market-based salary, there's really no way of knowing whether federal judges are underpaid or overpaid based on their talents. My guess is that judges in expensive metropolitan areas are underpaid given the cost of living, and judges in more rural areas are in some cases overpaid, given the other perks of the job, including a very generous pension system. (This dynamic tends to be true of federal jobs more generally, despite some feeble attempts to adjust salaries to cost of living.) And of course, some federal judges are significantly more talented than others, raising the potential overpaid/underpaid gap in any given scenario. But it does strike me as odd for someone who has already accepted the job, and has no thoughts of resigning, to complain that he's grossly underpaid. Underpaid relative to one's value in the open market, sure; but underpaid relative to one's own calculus of the benefits of the non-pecuniary benefits of the job? Unlikely. Given that Justice Kennedy likely could easily command a $2 million salary, probably without working very hard, it seems clear that he values the non-salary benefits of being a Justice at well more than $1.8 million. I understand the dynamic quite well; until a few years ago, my salary was significantly less than first year associates in D.C. got paid, but I wouldn't have traded my job for theirs. To therefore claim that I was "underpaid" relative to these associates would have been a complete non-sequitor.

tbaugh (mail):
Is it not possible to take the position that it matters not whether there is a "constitutional crisis" or whether judges are leaving the bench early, that a fair salary given the job requirements and salaries within the legal field, while still substantially less than can be made in private practice, is more than is currently paid? I don't think the justices should get 600,000, but without regard to constitutional crisis and people leaving the bench I just think the job is worth more than is being paid.
3.12.2007 1:13pm
Steve Lubet (mail):
Given that there is a free market for legal talent, how is it possible for a job to be "worth more than is being paid"? Just asking . . .
3.12.2007 1:22pm
Spitzer:
The British may offer a useful example: it is extremely rare for a barrister to be asked to serve as a full-time judge until the barrister has been practicing for some time - it is my understanding that there are very, very few appointments of full-time judges who are under the age of, say, 45 or so, and most are quite a bit older. On the other hand, the British offer temporary or part-time judicial positions to barristers, and I know of several very experienced barristers who sit as lower court judges one day every few weeks - it's a great way for the barrister to learn how to act as a judge before he is selected to a full-time position, and it is a wonderful way for the judiciary to tap into a wide variety of talents.

On the other hand, it is noteworthy that, until very recently, it was almost unheard-of for a barrister to refuse to serve as a judge once he was selected - and the recent change from that pattern has been ascribed entirely to the private-public pay disparity (which is even greater in the UK than over here).
3.12.2007 1:32pm
sksmith (mail):
Just curious. Why would a hypthetical 25% paycut be unconstitutional?

Sk
3.12.2007 2:06pm
eddie (mail):
It might also be the case that our law schools might benefit from the voluntary resignation of various tenured professors. But then, the grass is always browner on one's neighbor's yard.

In the end, it's the ridiculous salaries of the private sector that are out of whack and have created a generation of technicians that merely "play" at the law and will "make the argument" as long as it serves a commercial interest.

Am I being cynical? I guess when I hear a professor admonishing a Supreme Court justice about money, my worse half takes over.
3.12.2007 2:13pm
Redman:

Well, Justice Kennedy, here's an option for you: resign!


I'm tempted to say the same thing. But, being on the USSC is the most important legal position in America, and therefore one of the most important in the world. Yes, there are a lot of perks to being a Justice, but does that really override the huge salary disparity?

The ridiculously inflated salaries paid by the top New York firms to new associates may not be the best yardstick for comparison. Those salaries strike me the same way a professional athlete's do . . . we should all be so lucky. Are they "the best lawyers?" . . . I'll bet not, or at least not necessarily. They just have the pedigree. It makes more sense to me to compare the Justices salaries wiht other judicial salaries, state and federal. They should make more . . . a whole lot more.

Life tenure . . . yeah, I'd love to have it, but federal judges aren't the only ones in our economy to enjoy it. Schoolteachers have it (and don't try to tell me they don't . . . when was the last time you heard of one being fired for incompetence?) and I dare say a lot of unionized workers do as well. Not to mention the hundreds of thousands of local, state, and federal civil service employees.
3.12.2007 2:16pm
David M. Nieporent (www):
Sksmith: because the constitution says "you can't cut judges' pay." Or, rather, it says: "Compensation which shall not be diminished during their Continuance in Office."
3.12.2007 2:19pm
Anonymous Reader:
Payment for legal services has long had a patina of reasonableness attached to it, which is singularly odd when one tries to link it to the concept of a free market. It produces most of the vocabulary problems that discussions of "salaries" for lawyers engenders.

Honestly, the monthly payments made to newer lawyers with good resumes are somewhat modest when compared with the compensation of successful members of a similar age in several different industries, including financial planning and real estate.
3.12.2007 2:32pm
Anderson (mail):
Would it really be so terrible if young, bright, ambitious, attorneys saw federal judging as a thing to do for a decade or two?

Yes, it would. Because those ambitious young things might then be writing their opinions with an eye to their future jobs as corporate counsel somewhere.
3.12.2007 3:14pm
Cornellian (mail):
I don't think judges should get paid on a par with the private sector, and Kennedy always has the option to resign if he wants to make a lot of money.
However, since Congress sets judicial salaries without regard to market forces, one can say "resign" regardless of whether a judge is getting paid $100k, $200k or $300 so it doesn't really tell you anything about the appropriate level for judicial salaries. At some point the disparity between the bench and the bar becomes so large that people you want to become judges feel a great deal of financial pressure to decline. It's a lost opportunity cost. It may be difficult to measure, but it's there.
3.12.2007 3:16pm
Simon (391563) (mail) (www):
I think Spitzer is on to something; rather than having thirtysomething appointees resign when they're fiftysomethings, the answer may be to stop appointing thirtysomethings to begin with. The Supreme Court is too old and the rest of the bench is too young.
3.12.2007 3:16pm
tbaugh (mail):
Steve:

I think it works differently for public employment. I think it clear that many public defenders are underpaid (and many prosecutors, of which I confess I am one but have no pay complaints), and I don't think its an answer to say "do something else, and there will always be someone to replace you." Maybe I'm just way off, but I think the job--at least these sorts of jobs, where the answer can always be "you are fungible, leave, and we'll get another one"--can be underpaid despite the fact that others will take it for that price.
3.12.2007 3:17pm
tvk:
"On the other hand, we don't want judges ruling on cases with an eye toward pleasing future private sector employers."

Good to see the concession, but what is to address this point? Federal judgeships are not like clerkships, where you go in for a year, get the creditial, and cash out. It would be a terrible thing if it became like one. Life tenure with guaranteed salary means very little if it is life tenure at a worthless salary.

Federal judges all have great post-resignation options, with expected salaries in the millions. It would be too bad if they started going into the gig with an eye toward those millions.
3.12.2007 3:36pm
MDJD2B (mail):
The fallacy in Prof. Bernstein's argument is its tacit assumption that lawyers who will serve for less money on a court are funtionally the same as those who will not. Low salaries may keep off the bench some lawyers whose experience, skills, and mindsets one might want to see represented.

Some examples:

Do low judicial salaries skew the judiciary toward those who can afford to take jobs at a rate far below market value? Does this result in a judiciary with a disproportionalte number of people who are single, who are independently welalthy or have wealthy spouses, who have spouses with highly lucrative jobs, or who are ideologues who will give up money to push their agenda? Does this result in a judiciary that is interested and expert in non-economic issues, but is less abt to grant certiorari (and less adept at deciding) issues that require an understanding of business or economics?
3.12.2007 4:03pm
dearieme:
The judge/private practice income disparity in Britain has got to the stage that when a Pension Reform bill was introduced recently, a special exemption was inserted for judges because they said that many of them would otherwise resign.
3.12.2007 4:08pm
Anderson (mail):
the answer may be to stop appointing thirtysomethings to begin with

But that's not going to happen, b/c Republicans in particular have been very smart about putting younger people on the bench, so that whatever happens in the White House or the Congress, their judges will be there for decades to come.

In that regard, conservatives should be eager to *keep* "their" judges on the bench. Pony up the $$$, guys!

Could the Congress set a 50-year minimum age limit on judges by statute, or would there have to be an amendment? The former, I think.
3.12.2007 4:22pm
Anderson (mail):
On the other hand, we don't want judges ruling on cases with an eye toward pleasing future private sector employers.

I missed DB's concession, obviously, but his question at the end of that paragraph suggests he doesn't take it very seriously.
3.12.2007 4:23pm
PaulB (mail):
Two unrelated points. First of all, if a Supreme Court clerkship is worth a $200,000 bonus above and beyond the mere $150K that a first year associate at an elite firm must scrape by on, why should the taxpayers have to pay a salary during their clerkship?

Secondly, I understand that the concern over judicial compensation primarily revolves around the differential with law firms and law schools, rather than absolute levels. The obvious solution is to enact a gross receipts tax (how about one-third?) on the revenues of law firms above a certain minimum ($5 or 10 MM?) and on law school revenues from tuition and donations! Given the overwhelmingly progressive world view of law school faculties and increasingly, law firm partners as well, there should be no opposition within the profession to a tax paid for by this wealthy and powerful cohort of American society.
3.12.2007 4:31pm
dwshelf:
In industry, there is a clear empirical observation to detect whether a body of professionals is being paid market salaries.

You count how many are quitting for more pay.

No matter how good the argument for "we're not being paid enough", if the count shows zero people quitting for more pay, they're being paid enough. If it yields zero (or near zero) for decades, that's strong confirmation indeed.
3.12.2007 4:43pm
Bobbie (mail):
Don't forget that Supreme Court clerks usually are paid little until after their clerkship ends. They are foregoing the pay day they would receive from working at a big firm. It wouldn't surprise me if the two years somebody spends clerking nets you less money than your base salary does as a first year associate. Even with a 200k signing bonus, Court clerks probably have not netted much more money three years out of law school than somebody who work for a firm for all three years.
3.12.2007 4:59pm
anonVCfan:
dwshelf, I think the argument the judges are making is that the effect is primarily on the intake end. Instead of quitting for more pay, people aren't signing up to begin with.

That is much tougher to measure. I don't think anyone's keeping track of which people were approached, but turned the job down for pay reasons. You can always find people who say "I wouldn't want to be a judge because of the pay cut," but an appropriate response to that is usually "no one wants you to be a judge anyway."

I want to know who it is that the judiciary is missing out on because of pay, and why the law should be changed to bring those people in.
3.12.2007 5:03pm
OrinKerr:
David,

I think you're being unfair to Justice Kennedy here. You are acting as if his argument was that he himself deserved more money: you write that he is complaining that "that he's grossly underpaid." But I believe his point was that the entire federal judiciary is underpaid. While he is part of the federal judiciary, his testimony in context was not some sort of personal plea for more money.
3.12.2007 5:12pm
DavidBernstein (mail):
Orin, I'd have more sympathy for the good Justice if he would have limited himself to "judges" and not mentioned "Justices." Given that there are only nine Justices, it's hard not to draw the implication that he thinks he's underpaid. Given that being a district court judge carries much less prestige, historical significance, and whatnot, not to mention many fewer invitations to stay in extremely luxurious accommodations while doing a little lecturing, and that individuals are much more likely to turn down district court judgeships than supreme court nominations, I think that one can more easily argue that district court judges, especially in high-cost places like NYC and SF, are underpaid than USSC Justices.
3.12.2007 5:39pm
frankcross (mail):
It's unfair to Kennedy only insofar as the post didn't call out Roberts, Rehnquist, and the many other justices who have consistently made the same claim.

For a market test, I think it's right that USSC justices are clearly not underpaid, given their authority. I'm less sure at the district and circuit court levels. The word on the street is that Luttig left because he didn't get the USSC appointment but would have happily accepted that over the private sector.

There are companies that have an inverted pay scale (and universities), but I doubt that will happen in the federal judiciary.
3.12.2007 5:57pm
Fran (mail) (www):
Justice Kennedy is a judge. Shouldn't he compare his salary to those of other judges?

Should Legal Aid attorneys get a raise because the 'market' for lawyers is much higher?

You would think that the libertarian view of the market setting salaries for particular jobs would be the rule.
3.12.2007 5:57pm
Public_Defender (mail):
Do low judicial salaries skew the judiciary toward those who can afford to take jobs at a rate far below market value?

Any attorney who can't "afford to take" a lifetime job at $150+K a year with a great pension lacks basic money management skills. I wouldn't want such a person as a judge.

Anyone can live comfortably within commuting distance of a courthouse any place in the US for 150K. I understand that some rules require judges to live close to their districts, but maybe those could be relaxed in NY and SF. Judges can take the subway or drive in from the suburbs like a lot of other people.

Judges who work in attractive areas get the benefit of working in attractive areas. They shouldn't get additional pay for that.
3.12.2007 6:10pm
dwshelf:

dwshelf, I think the argument the judges are making is that the effect is primarily on the intake end. Instead of quitting for more pay, people aren't signing up to begin with.


We analyze this effect by observing whether we have a sufficient number of highly qualified applicants.

It really doesn't matter how many turn the opportunity down, so long as we're presented with a surplus of highly qualified applicants.
3.12.2007 6:17pm
OrinKerr:
David B writes: "Given that there are only nine Justices, it's hard not to draw the implication that he thinks he's underpaid."

Perhaps it's an implication, but the fact that it's only an implication seems important. My understanding was that your post criticizes Kennedy for complaining about his own low salary when obviously he could easily increase it. But if he was actually arguing in favor of a greater salary for all federal judges, your criticism seems less appropriate (as Justices are a very tiny slice of federal judges as a whole). Or did I misunderstand the post?
3.12.2007 6:35pm
jallgor (mail):
Public Defender
I would argue that you may not be able to afford a lifetime job at $150+K a year with a great pension when you have been living on $1 million plus a year for many years which is the kind of money private sector lawyers are making. Sure if you have been making a million and living like you make 150K you'll be fine but most people don't do that.
Also, I disagree that anyone can live comfortably in NY on 150k or, more accurately, it depends on your definition of comfortable living. For me it would require the following at a minimum: a single family home within 1 hour commute to work, in a school district where I am comfortable sending my kids to public school, I would want the ability to drive a new rather than used car and I would want the ability to spend money on things like the occasional nice meal or vacation. It's pretty hard to have these things I just mentioned in NYC on 150 K a year. It might even be impossible since the house alone is going to cost you between $400K and $500K.

All that being said, I personally would sacrifice a great deal of salary to be a federal judge.
3.12.2007 6:52pm
neurodoc:
Pay disparities between government and private sector opportunities is a problem not only where the judiciary is concerned. Try to hire highly remunerated medical specialists at government salaries, as the VA, military, and other agencies must do. When it can't be done, the government often resorts to contracting out for those services. At the SEC and some other government agencies that compete head on for talented professionals with very deep-pocketed private sector employers who would hire that same talent, the government has had no choice but to greatly relax the highly structured and capped pay system in effect for most federal civil servants.

Does anyone really believe that so long as there are warm bodies in positions of responsibility with other warm bodies willing to take step in to fill vacancies as they arise, federal pay for professionals is just where it should be? It would be nice, would it not, to have important positions filled by more than just "warm bodies" or those satisfying minimal competency criteria. And for that purpose, surely more must be taken into account than vacancy or attrition rates, with the differential between public and private sector compensation (pay and benefits) always be a concern for other than short-term appointees. (We needn't worry to much about the pay of SCt clerks, because they will be made "whole" quickly after their clerkships end. Similarly, most cabinet officers can look forward to much greater compensation after they have served a few years in office.)
3.12.2007 7:31pm
Alex 2005 (mail):
Justice Kennedy should realize that he's being overpaid when government has to pay him to write utter drivel like Idaho v. Coeur d'Alene Tribe (1996)
3.12.2007 7:43pm
dwshelf:
Does anyone really believe that so long as there are warm bodies in positions of responsibility with other warm bodies willing to take step in to fill vacancies as they arise, federal pay for professionals is just where it should be? It would be nice, would it not, to have important positions filled by more than just "warm bodies" or those satisfying minimal competency criteria.

Does anyone actually describe our current crop of justices as "warm bodies"?
3.12.2007 8:42pm
Colin (mail):
Does anyone actually describe our current crop of justices as "warm bodies"?

It depends on the justice and on who's doing the criticizing.
3.12.2007 9:11pm
davidbernstein (mail):
I suspect that the Justices on the USSC realize, or should realize, that it's the lower court judges, not them, who may really be "underpaid." But I'm sure the Justices would consider it an insult if lower court judges got paid more than they do, so whenever they testify, they put in a plug for themselves as well as the rest of the federal judiciary. Frank Cross is right, Kennedy isn't saying anything different that what other Justices have said. But wouldn't it be refreshing to hear a Justice say, "Considering all the other perks of being a Justice, we get paid well enough; but it's becoming increasingly difficult to find top-notch private sector attorneys willing to take a drastic pay cut to become judges in expensive metropolitan areas. Therefore, I recommend that Congress hold our salaries steady with regard to inflation, and do the same for less pricey jurisdiction, but raise the pay for federal judges in expensive markets where top lawyers typically have incomes far higher than federal salary." A lot better than the union mentality they've had so far, in which all judges should be in lockstep, except that the each higher level of judicial the pyramid gets slightly more.
3.12.2007 10:56pm
Benquo (mail) (www):
Are we not to draw the inference that Justice Kennedyt believes himself to be an inferior judge? Instead of criticizing him for hypocrisy, we should be praising him for his remarkable intellectual honesty and humility for admitting the likelihood that there are many more desirable potential judges out there.
3.13.2007 12:40am
dwshelf:
we should be praising him for his remarkable intellectual honesty and humility for admitting the likelihood that there are many more desirable potential judges out there.

That there might be desirable candidates for judge out there is inconsequential, so long as the list of candidates with excellent qualifications exceeds the supply of jobs.

Those who would like to make the bottom side argument would be well advised to show where a judgeship was filled with a "warm body" because no highly qualified candidate applied for the job, and an increased salary would have made an important difference.
3.13.2007 2:15am
Public_Defender (mail):
$1 million plus a year for many years which is the kind of money private sector lawyers are making. Sure if you have been making a million and living like you make 150K you'll be fine but most people don't do that.

Anyone in a high paying job who wants to consider public service has to live below their means. It's just poor planning for a big firm lawyer wants to be a judge to live a million-dollar-a-year lifestyle.


Also, I disagree that anyone can live comfortably in NY on 150k or, more accurately, it depends on your definition of comfortable living. For me it would require the following at a minimum: a single family home within 1 hour commute to work, in a school district where I am comfortable sending my kids to public school, I would want the ability to drive a new rather than used car and I would want the ability to spend money on things like the occasional nice meal or vacation. It's pretty hard to have these things I just mentioned in NYC on 150 K a year. It might even be impossible since the house alone is going to cost you between $400K and $500K.

Then how do the public defenders, prosecutors, secretaries, etc. do it? If the judges complain that their salary isn't enough to support a middle class lifestyle, then they need to get in line behind a lot of other people when it comes to a need for a raise.
3.13.2007 6:51am
Public_Defender (mail):
SOrry for the double post. I meant to say:


Anyone in a high paying job who wants to consider public service has to live below their means. It's just poor planning for a big firm lawyer who wants to be a judge to live a million-dollar-a-year lifestyle.


Judges should get COLA's because it's just wrong to hire someone and watch their salary get eaten away by inflation. But the lifestyle argument for a raise hurts the judges' cause.

The argument that a certain salary level is necessary for a decent lifestyle applies much more strongly to tens of thousands of others in the judicial system than it applies to judges. The lifestyle argument puts judges near the end of a very long line, and it makes giving them a raise much more costly.

I also don't buy the argument that you can't get high quality candidates for less than $250K. There are a number of very bright bulbs on my state court bench who would make excellent federal judges, and they would be happy to work at current federal salaries.

If big firm partners with poor financial planning skills aren't willing to take federal judgeships at current rates, there are plenty of very smart candidates who will.
3.13.2007 7:59am
jallgor (mail):
Public Defender,
First, my argument has nothing to do with getting quality judges or whether they are entitled to a certain lifestyle. Like I said, I would sacrifice a great deal of money and comfort to be a judge because I thnk I would find it very rewarding.
Second, I think it is silly to assume that everyone who has the chance to be a judge knows it early on and then molds there life accordingly. Life for most people just doesn't work like that.
Finally, my main beef was simply about your estimation of what it take to live comfortbly in NYC.
You asked:
"Then how do the public defenders, prosecutors, secretaries, etc. do it?"

The answer is that those people usually don't live comfortably in New York, period. Try raising a family in New York on a Public Defender's salary. You'll find it hard to impossible to meet the criteria I laid out above.
3.13.2007 10:09am
Adeez (mail):
"The answer is that those people usually don't live comfortably in New York, period. Try raising a family in New York on a Public Defender's salary. You'll find it hard to impossible to meet the criteria I laid out above."

Jallgor, as an attorney for NYC, I can state with authority: you're right.
3.13.2007 11:06am
Public_Defender (mail):
jallgor and Adeez, I think you help make my point that if quality of life is a reason for a raise, there are a lot of people who should get raises before federal judges do.
3.13.2007 6:27pm
jgshapiro (mail):

Federal judgeships are not like clerkships, where you go in for a year, get the creditial, and cash out. It would be a terrible thing if it became like one. Life tenure with guaranteed salary means very little if it is life tenure at a worthless salary.

What is the percentage of federal judges that leave for better money? I don't know the answer to this, but I'd bet it is very small. Even smaller for circuit judges: one of the reasons everyone noticed that Luttig quit was that it's done so rarely. Doesn't that suggest that there isn't a problem? The problem would be when it happens so often that it doesn't get noticed.

I can't see salaries being set at a level high enough to prevent ANY attrition. So the real questions are: what is an acceptable level of attrition, and are we materially above that level?
3.14.2007 5:25am