A "Modest Proposal" to Increase Judicial Pay:

In a series of posts in 2006 and 2007, I criticized claims that we are in dire need of a pay raise for federal judges (see here, here, and here). However, lots of eminent authorities disagree. Chief Justice John Roberts has argued that supposedly low judicial pay is creating a "constitutional crisis.". The American Bar Association claims that "inadequate salaries are undermining judicial independence" and "threaten[s] . . . the vitality" of the judiciary.

Unfortunately for advocates of judicial pay increases, Congress has so far failed to heed their calls. However, my GMU Law School colleague Ross Davies has developed a "modest proposal" that could increase judicial salaries without a new congressional appropriation funded by general tax revenue: Ross' proposed "Judiciary Fund" would raise federal judges' salaries to the levels of recommended by the ABA by means of an appropriation funded by a special tax imposed by Congress on the ABA's own members. As Ross points out, the Fund (if authorized by Congress) would not violate federal judicial ethics laws. He explains simple mechanisms by which Congress could structure the Fund in ways that eliminate any conflict of interest.

Ross also argues that ABA members could fairly easily afford the $44 million in annual expenditures needed to raise judicial pay to levels the ABA deems essential. He calculates that the necessary sum could be raised by imposing a tax of about $110 per year on each ABA member. Alternatively, the special ABA tax could be made progressive, with higher-paid ABA members being required to pay more than their lower-paid cousins. The ABA could even lower its membership dues somewhat in order to offset the extra expense imposed on its members by the tax (this last is my own suggestion).

It will be interesting to see whether the ABA embraces Ross' proposal. If judicial pay increases really are essential to maintain the "vitality" and "independence" of the judiciary, perhaps the ABA would be willing to put its money where its mouth is. However, I'm not holding my breath on that one.