2008 Year-End Report on the Federal Judiciary:
It's available here, just in time. From the Chief Justice's report:
Happy New Year, everyone (which I mean in an entirely inoffensive way).
I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. . . . Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years. One year later, Congress has still failed to complete action on that crucial remedial legislation, despite strong bipartisan support and an aggregate cost that is miniscule in relation to the national budget and the importance of the Judiciary’s role. To make a bad situation worse, Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even though it provided one to every other federal employee, including every Member of Congress. Congress’s inaction this year vividly illustrates why judges’ salaries have declined in real terms over the past twenty years.Thanks to Howard Bashman for the link.
Given the Judiciary’s small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the Judiciary’s modest petition: Simply provide cost-of-living increases that have been unfairly denied! We have done our part—it is long past time for Congress to do its.
Happy New Year, everyone (which I mean in an entirely inoffensive way).
or the price of a gallon of gas.
Also, Chief Justice Roberts likes to note that large firm lawyers make as much as most federal judges. That's true.
Then again, how many large law firm lawyers were fired from their jobs this year? How many federal judges were fired from their jobs this year? Does job security have an economic value?
When there is a shortage of qualified applicants for judicial appointments, I'll believe there is a compensation problem.
Right?
The 7th amendment, for instance, only guarantees jury trials for suits in excess of $8,175.00 (give or take). The founders' will in this instance has been so badly eroded as to be a joke -- $20 doesn't even cover the filing fee!
Usually one pays for goods before receiving them, not after (at least that's been true for my limited experience in commerce).
They get a generous retirement, too, don't they? And they don't have to serve for 20 or 30 years to get that retirement... do they?
If their pay is not sufficient compensation for having the power to protect the Constitution, maybe they should just go into private law practice and get rich by trying to subvert it.
I think he really meant to say this: "Given the Judiciary’s small cost, and its absolutely critical role in protecting judicially created laws and edicts we enjoy..."
Not so fast.
See here.
You don't think Congress is really going to ask for the $25 million back from Kraus? If they did, that Chief Roberts Dude would tell no.
Hang 'em all.
Whenever someone uses an analogy or metaphor, I ask: How are the two things being compared alike or not alike? Metaphors are often illustrative. But they are also a powerful rhetorical device that distracts.
Law school deans are not public servants. They are hired, in large part, on their ability to raise money. They are money makers for law schools.
In light of this, why do you find the comparison between dean's and federal judge's persuasive?
That seems reasonable to me.
Someone buy Roberts a diet coke. There's a soda machine around the corner.
Joey Cassano walks away with a million a month:
If Roberts wants real money, he should quit and become a “federal judiciary consultant”.
He can drink his cola out of a brown paper bag.
Hang 'em all.
I went over there a few weeks ago. Total. Suckage. Just saying. If you want to make an appealing case, don't start with something that blows.
Judges don't just "interpret the constitution" they are also tasked with statutory and administrative law that may have pretty high complexity and specialization, especially at non-SCOTUS levels of the judiciary. You want the people trying to sort out those important but technical questions to know what they are doing, which means having some judges with the appropriate knowledge. Getting those people, as opposed to ideologically-motived people who will receive non-monetary compensation from judicial jobs, requires spending money at competitive rates.
Put another way, we need to spend enough money that there isn't too much truth to the old joke: Q) What do you call a lawyer with below average intelligence? A) "Your honor."
That's a crude threat: Chief Justice Roberts and his colleagues demand more money... or they'll take bribes!
Someone buy that man a senate seat.
Hang 'em all.
I suspect most of the other Federal Judges are pikers too. What do they need the money for, obviously they're not willing to pay to play.
That's true, but when I buy goods in Commerce, the UCC grants me certain implied warranties, like merchantability and fitness for a particular purpose, and I am free to negotiate for others; if the goods don't conform to the contract, I have a right of return. With the Federal Judiciary, I get no warranties at all, and certainly no right of return (like they would do me any good! Remember who gets to decide the case if I sued for a Federal Judge breaching the warranty of fitness for the purpose of deciding cases in accordance with the law!). As I see it, when we accept a Federal Judge, we take him (or her) "As Is, With All Faults", and have to live with him and his decisions come hell or high water. I don't know about you, but I pay less (sometimes a lot less) for commercial goods with no warranties, express or implied, and absolutely no rights whatsoever if the goods turn out to be faulty or even harmful. When I can sue Federal Judges for negligence for getting cases wrong (just like I can sue lawyers for malpractice), then I will agree that they ought to get a market rate of compensation.
You retain the right to alter or abolish your purchase, isn't that enough?
No, you've just delegated your power to remove him to your duly elected (and sometimes improperly appointed) Senators.
They also get a summer vacation - like in high school. Law schools then pay them thousands of dollars to teach in Europe or other vacation destinations - all expenses paid.
Does Chief Justice Roberts mention those perks in his request for pay? If not, why not?
Also, unlike law school deans and law firm associates, federal judges have control over their schedules. Not a bad perk, is it?
As a public servant, the Chief Justice should do more than simply advocate for a pay raise. He should fully disclose the benefits of being a federal judge. Give the public all of the information needed in order to rationally analyze the issue.
Should full disclosure be something a public servant would give? Why then, does the Chief Justice cherry pick facts that make federal judgeships look like hardships?
No. Neither should Congress or any federal official.
I like Roberts but this constant whining about pay is not becoming.
If they want to make law school dean salaries, become one. Didn't Paul Cassell do that?
I don't follow your point. Aren't nominal dollar amounts today bound to be much higher than a 100 years ago? Isn't what's important the 'real dollar" or "constant dollar" amounts?
Just saying, "Hey, don't let inflation cut our pay" is far more persuasive than arguing that they were underpaid even though they are 1) the highest paid government lawyers in the country; 2) the highest paid judges in the country; and 3) the highest paid employees in their courthouses
And compared on an hourly basis?
SeanM, sure, if you actually read the report, that's what he's arguing. But a lot of people feel they've been wronged by the federal judiciary or that they're underpaid, too, so the Year-End Report on the Federal Judiciary is also the Year-End Opportunity to Vent.
As for Roberts's absurdism about how first year associates get paid more than him -- I'm willing to guess every first year associate in the country would be more than willing to trade his job for Roberts's. Maybe Tiny John should take one of them up on the deal?
It's not a compelling argument. It is a bit disingenuous to claim a need for a cost-of-living-adjustment when your salary is several times your cost of living.
Secondly, why should the bulk of Americans degrade, albeit indirectly, their own spending power by giving a COLA to the rich?
Finally, don't these guys have any idea of how to get a raise? They should be telling us what they are doing better than before in order to justify the increased pay. Not just telling us that inflation is giving them a pay "cut".
What is a judge's cost of living? And how did you calculate it?
Well, I guess there is only one approved view on the matter. Opposition views are fueled by jealousy or other improper motives.
COLA increases are just as bad as straight increases. Most people do not get guaranteed COLA increases.
These people are federal judges. Lifetime appointments. Incredible deference. Power. Nice pensions.
Yet they continue to complain about the pay that puts them in the top 2% of Americans. Americans who pay their salaries.
How much did these judges make in private practice before hand? Do they have no investments?
I called it whining before. It still fits.
Start with insurance on a Bentley, factor in the price of caviar (which has gone way up due to sturgeon overfishing in the Black Sea) and foie gras (also up due to PETA protesting), add on a season's opera tickets at the Met (including airfare or at least roundtrip Acela) and, grudgingly, the Kennedy Center, upkeep on a five bedroom in McLean or Georgetown -- and maybe still a mortgage on the summer house in the country -- don't worry about the yearly trip to Europe, which is covered by others, and I suppose we also need to consider Saville-Row suits and crocodile skin wallets -- even for Ruth, unfortunately -- and maybe another hundred thousands for miscellany. Then take the whole thing and divide by .9 in order to make up for the Catholic tithe.
That a surprising statement coming from you since it's not substantive and merely designed to insult people who oppose pay increases. I'm neither underpaid nor hateful of the judiciary. I have a lot of respect for some judges - but little respect for others.
I just think they already make plenty of money already, especially given the work-life balance and other perks.
And it's not so simple as saying, "Just give us a COLA." That's all we're asking for. If a person is already being paid enough (or more) money for the job, why should he or she be given a raise?
COLA raises shouldn't be viewed as an entitlement. So if you want to ask for a raise, a person who ask, "Aren't you already overpaid," is not ignoring that you merely asked for a raise. He's saying, "Before we get to the raise question, let's look at your current salary and benefits." That's just good critical thinking.
Anyhow, if judges would actually do something to actually punish the bad judges, maybe a pay raise for everyone would be appropriate. But how many years did Manuel Real get away with running his little fiefdom with no scrutiny?
And look at the Samuel Kent case.... Look at the efforts to sweep his alleged conduct under the rug.
When the thin black line is pierced, and bad judges are actually disciplined, then judges will have a stronger argument in support of a pay raise.
In this country, where all men are considered equal, the cost of living is the same whether you are a judge or a flight attendant. There have been numerous government agencies that have calculated how much people need to live. In particular the IRS has a fairly detailed plan.
I'll ignore the implied "judge specialness" implied by your question.
I think the most striking point in Roberts' report is that the judiciary as a whole (including staff and all the rest) is only 0.3% of the federal budget. Clearly, if the Chief wants to get pay raises, he needs to convince Congress the Federal judiciary is "too big to fail" and get a bailout.
No, it was not design to insult. It was designed to explain why several commenters appeared not to be responding to the argument Roberts was actually making instead of the one he made last year.
This sounds like the Harrison Bergeron theory of how to calculate a person's cost of living. I appreciate the sense of equality that this implies, but I had thought a person's cost of living was a factual question, not a matter of theory.
To be clear, I'm not saying I agree with Roberts' argument. But I don't see what's so offensive about Roberts making the pitch on behalf of the federal judiciary. Seems to me that it's just his job.
A lot of people who have a lot of respect for the judiciary think that judges are paid just fine. Why is that so hard to understand?
I grew up in a family of 6 with my dad making $10,000. So, for me, it's a class issue. I know how the other half lives. I know how the bottom 10% of people live. I have some perspective. From my perspective, $169,000 w/benefits and lifetime tenure and the ability to set your own schedule and have lots of power and make supplement income teaching and getting travel expenses to seminars in exotic locations paid for, is a very, very, very good deal.
If my dad had been a hedge fund manager or doctor, maybe I'd feel differently.
Moreover, judges all say they are public servants. Well, it's people like my family and the working poor that the judges allegedly serve. You really don't think it's odd then, that they want to make so much more money than they people they supposedly serve?
Look at the data on household income. A quick Google search will turn it up. Judges are in the top 1-5% of income earners.
They deserve more (whether it's COLA or an outright pay adjustment)? Why? Since when should public servants make substantially more than the people they allegedly serve?
Oh, and Orin, I don't think you can discuss a pay raise unless you first look to current pay. So I don't think the comments on judicial pay in general are non-sequitors. Again, if you asked your boss for a raise, wouldn't your boss first ask if you're already paid enough? Mine sure would.
In criminal cases, defendants would be charged fees according to their ability to pay. Wealthy defendants would be charged the entire cost of their trial; if acquitted they would receive a 50 percent rebate and the government would pay the rest. Indigent defendants would need to forfeit all of their assets in order to qualify for a free defense.
This would dramatically reduce the cost of justice and reduce the number of frivolous lawsuits.
You completely misunderstand my post. "Non-monetary" doesn't mean bribes, it means the joy of wielding power. Do you want the federal judiciary to consist of people who think it is worth taking a pay cut in order to impose their ideology onto the law?
Seriously, all of you keep complaining about how these judges are just in it to make [expletive deleted] up. Have you ever thought that there might be a connection between judicial pay and the goals of people who decide to enter and stay in the judiciary?
None of mine would. They'd ask 1) whether I could make more elsewhere and 2) what it would cost to replace me. Whether I am "paid enough" in some social justice sense wouldn't enter into it.
My comment said that this is the argument he should have been making all along. The other comments show that Roberts predicament is an example of how making sloppy or borderline dishonest arguments (like the absolutely false assertion that the judiciary has a high turnover rate) hurts your credibility long term. When you crossover into dishonest/extraordinarily sloppy arguments, people remember. And it hurts you the next time, even if your next arguments are sound.
I'm told that attorney John Roberts was one of the best advocates out there. It's amazing how quickly he lost that ability.
Mike, here's a question in response: What should the pay be for a federal judge, in your opinion? Throw out some numbers, and let's see if we can reach some agreement.
First I never said that everyone needs to be held down to some particular level. To clarify what I said (because either you didn't understand or you're intentionally choosing to misrepresent what I said): what any particular person needs to live, barring people who have severe and chronic medical conditions, is basically the same as everyone else. That amount is quite low compared to the justice's current pay. And no, I'm not saying that federal judges should be living at the bare minimum possible. But no one with any integrity can claim that judges aren't receiving enough to be exceptionally well off. Given that staying in office for fifteen years qualifies them for 100% of their final pay for the rest of their lives, they don't even have to put anything away for their retirement years.
It doesn't look like any of these guys and gal are missing meals on a regular basis.
If a substantial portion of the rest of the country isn't seeing pay increases I don't think a valid argument can be made that judges aren't staying in parity with everyone else.
Given the pay of top level government attorneys (USA's, for example) and the pay of state court judges, federal judicial pay seems about right, especially when you consider how many high quality people seek the few available jobs and how rare it is for a federal judge to resign.
That said, COLA's seem fair. They shouldn't lose pay year after year. If they were worth X real Dollars five years ago, they are worth X real Dollars now.
That's a very hard question. We can't use the free market argument, since obviously there is no free market for judges - in the sense that someone can't demand a pay raise to move from the highly desirable S.D.N.Y. to the less desirable E.D. Tex.
That said, do we have a shortage of qualified applicants for the job? If we do not, then the right amount to pay judges is whatever they are currently being paid (or less, which of course we can't discuss since it's constitutionally impossible). If there is a shortage of qualified applicants, then we'd need to raise to pay to address that.
Some have a position that judges do important work, and should be compensated accordingly. But by how much more? It seems that any number we throw around is going to be arbitrary. If you say that a district judge should make $200,000; how can someone say that they deserve $250,000? Both are arbitrary numbers. Who can use logic or reason to best support his position if we don't have any standards?
I agree that they do important work, but as public servants, they should recognize that being a top 1% wage earner with the tangible and intangible benefits of being a federal judge, they are paid enough already. And that the lack of a shortage of qualified applicants is evidence that judges are adequately paid.
Do you believe there is a shortage of qualified applicants for federal judgeship? I suspect you'd accept an appointment, and I consider you a qualified applicant. I know many qualified people who would give up a lot of money to be a federal judge. But maybe I'm wrong about the shortage issue. Am I? Is there a shortage?
What standard should we use in deciding how much judges should be paid? In other words, if I say they deserve $150,000, and you say $200,000; how can either of us begin to support our positions, other than saying, "Well, they deserve that much?"
Well that's the question -- what's the standard? I took your earlier comments to suggest that you had a specific standard in mind.
Although I currently earn more than judges do, I don't get lifetime employment, guaranteed vacations or even a guarantee that I won't be fired next week just to cut costs. And I don't get a pension when I retire.
Meanwhile, their positions are greatly sought after by people who generally would be no less compentent than the incumbents. When they start quitting in droves, I'll start to think they might be underpaid.
The biggest outrage of judicial pay, of course, is that the salaries are inverse to the work and correlated with the desirability of the job. Anyone offered a Supreme Court job at $35k a year would take it in a heartbeat; a great many talented lawyers would decline a district court job at $120k a year. The pay scale should track that. Being a Supreme Court justice should be a basically volunteer position.
I think there are actually a lot of people who turn down judicial appointments because of the money. My understanding is that it's actually routine. And it's pretty understandable, too: If you're making a million a year as a law firm partner, it's pretty understandable that you're not going to consider a job offering you about one seventh of that for life!
Is there any single example of this anyone has ever provided?
The standard is: Where there is an adequate supply of applicants for a position, then the wage offered need not be raised. Here, there isn't a shortage of qualified applicants. Therefore, the wages are proper.
In a Platonic sense, maybe that's not perfect. But I'm not sure there is a better standard. Is there? If so, what is it?
I guess I don't know what an "adequate supply of applicants" is. As I understand it, lawyers don't apply to be federal judges: They are approached by the White House and asked if they are interested. My anecdotal sense has been that it's not uncommon for lawyers to say "no," in part because of salary and in part because the job isn't all that interesting to a lot of people. But I assume that the government can keep looking until it finds someone who will take the job, and eventually it can always find someone who can take the job and isn't unqualified on paper.
If my picture is correct, how do we know what salary creates an "adequate supply of applicants"? I'm pretty sure that we would have a higher quality judiciary of the pay were higher, as fewer would say no, but I don't know how we get a realistic sense of that without having been involved directly in the process (which neither of us have been).
That may not be true at the district court level, although there, perhaps especially, I get the sense that the judgeships are bought and paid for with political favors and there is really no effort to make a meritocratic appointment. I think it might not be crazy to double district court pay, while holding circuit court and SCOTUS pay the same.
That's not true here. A state appellate judge said that he went through an application procedure that went through our senator's office. Maybe that was the exception, but I doubt it.
Chief Justice Roberts made the argument last year that a raise was needed for that reason. You'd think that if anyone could make the case, he could. But he utterly failed.
There is no general application procedure for federal judges. And when you say that Roberts "utterly failed," does that mean that you personally found his argument unconvincing, or that there was some broader failure?
I agree that there is no "general application procedure for federal judges," but at least locally, our senator used one. People could literally apply to be federal judges.
As to Roberts "utterly failing" to prove his case, he argued high turnover justified raises, but when lots of people crunched the numbers, turnover among federal judges was about as low as turnover could be for any position.
Roberts also argued that the judiciary would be better off with more white-show law firm lawyers and fewer experienced state court judges. That's a policy argument you can agree or disagree with. But he gave no evidence that the judiciary would be better off with more such lawyers or that higher pay would make any significant difference in achieving.
So the white-show-law-firm-lawyers-make-better-judges argument was at least arguable, but the turnover argument was not just wrong, it was either dishonest or extraordinarily careless.
Those are excellent points. There’s a definite trade-off in having a job where you don’t get an automatic COLA but you have a virtual guarantee of lifetime employment at a salary that’s in the top 5% of income earners and you get your annual salary for life after fifteen years’ service.
Mind you, I’m emphatically not agreeing with those who want to use this as an excuse to rag on federal judges because of disagreements with their jurisprudence. I suspect a lot of us are ourselves or have loved ones who are either earning less than federal judges, out of work, in fear of losing their jobs, and/or a lot less secure about their retirement have trouble empathizing with Chief Justice Roberts’ argument.
And if there is a good argument to be made for pay raises, it is at that level. There are more district court judges, they make more decisions, decide more cases, on average work harder than appellate judges, and, in the aggregate, are probably therefore more influential than the appellate courts. But these are also the judges who receive the least scrutiny. It is also at the district level that a qualified lawyer is most likely to turn down a spot on the bench because of financial reasons. There is little empirical evidence on this because people who turn down the bench don't go around making it public record. But, like Orin, I also anecdotally know that it happens.
That brings up another point. Republicans seem to like to appoint young judges so that they can leave their mark for as long as possible (compare Scalia, Thomas, Alito, Roberts and Souter to Ginsburg and Breyer). If "low" (laugh) pay discourages young, Republican white-shoe lawyers from taking lifetime appointments as federal judges, I'm all for lowering the pay further.
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