The Judicial Salary Problem
At current salaries, “you no longer can draw the best trial lawyers, on a regular basis,” to the federal bench, Roberts said. While no one becomes a judge to get rich, he said, the government “ought to pay them enough so they can educate their children and have a reasonable lifestyle.””We don’t want to get to the point where we have the judiciary staffed solely by people of independent means, or by people for whom the judicial pay scale is a raise,” he said.
A few comments.
First, I wonder why the Chief Justice refers to “trial lawyers” as the appropriate pool. Even to the extent that he means “litigators” (because there are vanishingly few trials for judges to preside over), is there any reason, in theory, to think that litigation departments produce better jurists than corporate departments? I wonder. Considering that most of the job of the modern district judge is management of a process through to settlement, it would seem that corporate attorneys – at least ones who like to write – have a leg up.
Second, I (along with many others) question the claim’s empirics. The studies I have seen suggest that pay is not correlated with judicial decisions to retire (early). (The evidence is concededly mixed). It would be also quite surprising if it is correlated with agreeing to be nominated to the bench in all but the anecdotal case. The legal profession is acutely status conscious: lawyers who are in the position to be nominated have already demonstrated (through public service, or political connections, or effort) that they are particularly motivated by prestige as a substitute for cash. Moreover, it is a well-accepted fact that it is better to be a hammer than a nail. In our system, judges aren’t the nails. (Most of the time). In short, I think that even if you cut real federal judicial starting salaries (by keeping them constant despite inflation) the applicant pool would not significantly change.
But those are, essentially, market-clearing arguments, and don’t persuade me that the Chief Justice’s “real” point is wrong. Roberts has a better argument.
We should pay judges more because it encourages compliance with the law, and reduces the costs of the judicial system. I’d hypothesize that judges who are perceived to be treated shabbily by the state (ALJs, some state court trial judges) face higher rates of noncompliance with their orders. As a result, they are forced to intervene more often in private affairs (between lawyers, or with clients, who are not as strongly counseled to compliance as they would otherwise be). Think about the difference in timeliness in federal and state court as a data point, and the resulting real and social costs of bench warrant practice. Now, it might be that no one currently thinks that federal judges, making a minimum $165,000 starting salary, are treated badly by the federal government. But the constant complaints from judges about their treatment reinforces whatever impressions are extant. Where partner salaries at high-end firms start to approach thirty or forty times judges salaries, perhaps careful study would uncover a compliance effect. Status-rich but relatively poor judges are unable to access sufficient reserves of what international theorists call soft-power. Thus, low judicial salaries might have high social costs. Just not those costs the Chief Justice’s plea depends on.