A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment

[ I started writing this as a comment to Frank’s post, but it got too long. ]

I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:

Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!

My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.

Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).

This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?

There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.

Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don't out-earn their judges. In short, Justice Kennedy's factual premise about lawyer salaries doesn't support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don't know if that's worth pounding the table before a Senate Committee.

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22 Responses

  1. Paul Gowder says:

    Hah, my preemptive bid of 90k still stands. In fact, chop it down to 80k if I get a seat in the Bay Area or LA.

  2. Matt says:

    The general point seems right, but Idaho has a population of more than one million people (about 1.4 million in 2004.)

  3. Scott Moss says:

    I stand corrected: My apologies to the good people of Idaho (and their potatoes too).

  4. Ned Ulbricht says:

    Get real: High judicial salaries are necessary for judges to self-identify themselves with the wealthiest, privileged class.

    If judges were to self-identify as less wealthy, lower status individuals then all kinds of harms would result.

  5. Andrea says:

    “But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.”

    I am also dubious, and I’m a middle-class minority law student going into legal aid. If for some bizarre reason I ever get appointed to the bench, it will be a salary increase and I will be thrilled. I think you have to be pretty delusional to buy the “Luttig took the Boeing gig because he couldn’t send his kids to college on $170K” argument. What do you think most families do?

    I think Frank is off suggesting would-be judges “insulate themselves from such “penury” by making as much as possible before ascending to the bench.” Wouldn’t you have to know in your original career choices you are a would-be judge? Is it that possible to be sure of that?

    The real thing going on is that Roberts and co think they’re losing too many private practice lawyers who don’t want to take the pay cut. And that may be true or not, but the only solution to THAT problem is to raise judicial salaries WAY WAY up – what quite a lot of us think is totally unnecessary to find qualified candidates.

  6. Kate Litvak says:

    Scott, you seem to be so proud of your juvenile rants on political subjects (your Luttig post is a case in point) that I am having a hard time recognizing the guy who makes sensible comments on non-political subjects. Sure, we can hire you as a federal judge for less then the going rate. We can also hire you as a prima ballerina of the Bolshoi for less than the going rate. Or we can hire my gardener as a federal judge; his going rate is $15/hour, hallelujah. But it doesn’t mean we should. If we want top specialists in law (aka top lawyers) to become judges, we have to pay respectably. Top lawyers might be willing to give up some of their income to serve the public, but we shouldn’t strain their good will too much, lest our judiciary will be composed of (a) low-opportunity-costs incompetents; (b) lazy disinterested types who want to “retire” into judging; (c) extreme egomaniacs who enjoy power so much that it outweighs their income concerns, not to mention (d) people who treat opportunities for corruption as an in-kind compensation. The world has already done enough social experiments to figure out that what you pay is what you get. We can convince a few high-paid people to give up much of their income for a long time, or we can convince a lot of high-paid people to give up much of their income for a short time, but we cannot convince a lot of high-paid people to give up much of their income for a long time.

  7. Scott Moss says:

    Kate, I’m perplexed that you’d respond this way for two reasons.

    First, my main point is basic free-market labor economics: Justice Kennedy seems morally offended that a Prestigious Important Job (judge) pays less than an Unimportant Job (law firm associate). But that disparity seems entirely logcial, even predictable, under basic supply and demand principles. The supply of federal judge applicants is so high relative to the demand (i.e., the number of openings) that of course the pay will be low relative to the skills demanded. Justice Kennedy reminds me of folks complaining that entertainers get paid more than cancer researchers or teachers; wages aren’t determined by moral merit but by the answer to the question, “how much does an employer have to pay to find good talent?” I think the answer for federal judges is that the employer (the fed gov) doesn’t have to come close to matching private-sector salaries to find ample good talent; for the fed gov to pay more would be to throw away tax dollars to make upper-class judges richer.

    Second, your comment seems to violate your focus on empiricism and disdain for non-empirical assertions. My post concedes that “this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons?” I simply expressed that “I’m dubious” about Justice Kennedy’s dual empirical propositions that (1) many talented folks avoid being judges b/c of the salary, AND (2) as a result we have too few talented folks to fill a few dozen annual spots nationwide. I’m dubious b/c I find unpersuasive some of the main anecdotal examples (e.g. Luttig) offered in support of his point. I’m open to being shown persuasive evidence to the contrary, e.g., that a ton of top lawyers avoid the job and that the appointments of lesser lights results not from patronage but from an inability to find good candidates. Yet your well-established love of empiricism and disdain for any non-empirical assertions didn’t prevent you from posting several groundless factual assertions in your comment (e.g., that we are at or near the point at which salaries are so low that we have a shortage of qualified labor).

    In short, I honestly would’ve thought you’d completely agree with me that Kennedy was making an economically ill-conceived moralistic complaint that Important Jobs get paid less than Unimportant Jobs. I really do think that if you’d been able to step out of your “Scott’s rants are annoying so I must disagree with him” mindset, you would’ve agreed with me.

  8. Paul Gowder says:

    Kate, your argument assumes that there’s a significant difference in judicial quality between those who get appointed and all of those who don’t. Suppose it’s the case that there are x judicial positions and yx willing candidates who are sufficiently qualified such that there’s no cost-effective way to distinguish between them, where y is reasonably large. (Say >3.) The high value for y might be because of a preference for public service, it might be because the quality of lawyers in jobs paid less than judges (consider Justice Marshall coming from LDF) is similar to the quality of lawyers in jobs paid more (big firms), it might be because skilled lawyers in big firms have are willing to trade money for a reduced workload or more interesting work, etc.

    Then in a free, competitive, etc. market, the salary would go down until equilibrium where y=1. But this isn’t a free, competitive, etc. market.

    The empirical question, and I think it’s the one that Scott’s getting at, is the value of y. And in a world where federal judges make more than many, many, good lawyers, including law professors, public interest lawyers, etc., etc., there’s no a priori reason to believe that y is as small as Kennedy, etc. claim.

  9. Kate Litvak says:

    Scott, you seem to either misunderstand or misrepresent a whole lot of labor economics. For ANY job (perhaps with the exception of the lowest subsistence-pay gigs), you’ll find more candidates than open positions, and it doesn’t mean that the going rate is too high. The going rate is set to attract the people with desirable qualifications; the seemingly excessive supply of labor is made of underqualified folks who would happily take the job. There are lots of girls out there who would love to dance at the Bolshoi for free, but it doesn’t mean prima ballerinas are overpaid. Likewise, there are lots of lawyers out there who would love to get what effectively amounts to a life annuity of $160K, plus free young valets, invitations to public events, and little supervision. But I wouldn’t want most of those lawyers on the bench any more than I’d want my next-door neighbor at the Bolshoi. Your repeated assertions that we are doing just fine because lots of people are available for judgeships are simply irrelevant.

    You then proceed to demand that I supply empirical data, even though you were the one who authored the post, and you haven’t bothered to supply any data whatsoever. I would think the burden is on the poster to show that the existing pay does NOT drive out best candidates from the judicial job market and does NOT reduce the pool of available candidates to marginal levels. Incidentally, while I don’t have hard data, I have surely seen enough top-notch attorneys rolling their eyes at the proposition of becoming a judge (or a professor) and commenting about the pay. Presumably, J. Kennedy, who has seen many more judges and judge-material lawyers than you and I ever did, has similar impressions. I have no reason to believe that he was insincere conveying those impressions to the public.

    So, if you want to tell us that Kennedy is all wrong and that we have plenty of great people waiting to step in at the current wage, please do what you ask from others and supply us with some data. Employment law is your field, so I am sure you know what you are talking about. Data, data, please! (Applause). Just as a personal favor: please don’t follow Joe Slater’s standard technique and don’t cite anything published by a partisan think tank, student-edited journal, or some idiotic non-peer-reviewed publishing house, and don’t ignore endogeneity as he typically does. I’ve given up on Joe, but I believe in you, Scott.

    P.S. I do agree that moralistic complaints about anyone’s pay are foolish, and I don’t care who made them. Adjustments for the cost of living are a good idea too; it’s odd that they haven’t adopted such an obvious thing already.

  10. Kate Litvak is so awesome says:

    I must say I expected this post to be quite boring, but here Kate Litvak is delightfully ripping someone to shreds. Or rather, to my delight, Kate Kitvak is ripping someone to shreds. Unfortunately, I can’t tell if she’s delighting in it. Nor can I tell if she’s kidding about the Bolshoi. Does Kate Litvak attend the ballet? Inquiring minds want to know. Okay, I want to know. Just me. But I have an inquiring mind.

    Incidentally, while I don’t have hard data, I have surely seen enough top-notch attorneys rolling their eyes at the proposition of becoming a judge (or a professor) and commenting about the pay.

    I would imagine there is a nice pool of qualified never-picked nominees that could be chosen from, but the reason they haven’t been picked is political. Politics, not quality of lawyering and compensation, is what drives the selection of these judges. It may be the case that a good deal of the eye rolling and complaining about salary is a function of not wanting to have to deal with confirmation politics and public scrutiny. You couldn’t pay me a billion dollars to be publicly Borked, not even if you topped it off with a date with Kate Litvak to the Bolshoi.

  11. bill says:

    Ned Ulbricht said:

    “Get real: High judicial salaries are necessary for judges to self-identify themselves with the wealthiest, privileged class.

    “If judges were to self-identify as less wealthy, lower status individuals then all kinds of harms would result.”

    True dat, but judges do get to fly first class. I guess that meant more before private jets (fractional and otherwise) became commonplace among their perceived peers.

  12. Scott Moss says:

    Kate, I don’t think we disagree on principle, and I don’t think my post/comments reflect a misunderstanding of labor econ. I didn’t make the incorrect statement you imply I made — that “a glut of applicants means wages are too high.” What I said was that the question is whether wages are high enough to attract “ample good talent”; an employer should, and odinarily does, pay just enough to draw as much good talent as it needs. (As to your Bolshoi example: I don’t disagree; if they paid zero, they wouldn’t get enough top-level dancers. But a lot of jobs requiring immense talent don’t pay high wages, precisely because midest wages draw enough talent.)

    I concede that I don’t have empirical data. I don’t think good data exists b/c we’d need to know about confidential meetings and phone calls between Senators and high-level attorneys who won’t “talk out of school”; I know one law firm managing partner who turned down a chance at a federal judgeship (not b/c of the money, though), but that’s only because I know the person — s/he wouldn’t dream of embarassing the relevant politician(s) by mentioning this publicly. So this is the sort of policy decision that must be made on anecdotal data (e.g., reports of judicial resignations) and economic logic.

    Ordinarily I’d say that Kennedy knows more than I do, yes, so his anecdotal knowledge would merit deference. But I’m skeptical of Kennedy for two reasons:

    (1) I found his explanation unimpressive; he seemed to focus on the job’s Social Worth and Skill Required, not on supply-and-demand logic. So I’m not sure his view reflects a logical analysis of the data he has. Again, he sounded like the folks complaining that morally worthy jobs get paid less than less worthy jobs — an argument that draws eye rolls from anyone ec-minded. Maybe I misread the nuances of his point, but at least that was the impression I got.

    (2) There’s a clear principal-agent problem here: Kennedy’s self-interest is to maximize (a) his own salary, (b) the salaries of his peers, and (c) the pool of talented judges. The third interest (more talented judges) is legitimate except that there’s a point of diminishing returns; increasing wages helps attract more talent, but after a point, it doesn’t draw much more talent. If judicial pay were $500K and we doubled it to $1 million, that might attract a handful more immensely talented lawyers, but that probably wouldn’t be worth the roughly half-billion dollar annual cost (the cost of giving each federal judge $500K more). Kennedy’s self-interest is to value any marginal increase in the judicial talent pool, regardless of the cost.

  13. Scott Moss says:

    Two additional factual points about judicial salaries:

    (1) There is a cost-of-living adjustment by region — but it’s laughable, just a few percentage points, which utterly fails to adjust realistically for regional differences in wages and prices. That’s a fact I didn’t stress enough, and it’s a big part of why I think the problem Kennedy alleges could be fixed by adjusting salaries better (i.e., upwards) in just the few big cities where wages and prices are substantially higher. Law schools do that to a fair degree: note the regional disparities in the “SALT Equalizer”, the Soc’y for Am. Law Teachers’s law prof salary report (http://www.saltlaw.org/equalizer.htm). This is some empirical support for my side point that there may well be a localized problem with judicial pay in the biggest cities: the legal academic market is somewhat comparable to the judicial labor market, except that the academic mkt is more of a competitive market (and thus presumably features more efficiant wages) — and the academic market adjusts for major city cost-of-living much more than does the fed gov. Law firms, an even more competitive market, similarly feature far more substantial regional cost-of-living variation than does the fed gov (as my original post noted).

    (2) Someone emailed me with a good point (I assume s/he wants to be left out of this fray, or s/he would’ve posted a comment): a $171K salary is better than it looks when you consider how good the pension is: at a certain age/seniority level (age+years of service=80), you can (1) take senior status, reducing your workload to about 1/4 and keep your full salary and annual raises, or (2) retire entirely and keep getting your last year’s salary for the rest of your life. Most folks become judges in middle age (average ave of about 50), meaning they can serve 15-20 yrs and then keep getting paid after retiring (or going senior) for another 15-20 yrs. That’s a much better deal than most private-sector pensions — probably b/c politicians regularly defer a lot of compensation to avoid having to budget it now.

  14. Kate Litvak says:

    Scott, if you understand the common confusion created by the presence of underqualified applicants, you should not be writing silly comments like this:

    The supply of federal judge applicants is so high relative to the demand (i.e., the number of openings) that of course the pay will be low relative to the skills demanded.

    And if you get the point, you surely shouldn’t write silly escapades offering yourself for a judgeship (why not for a ballerina?), as if the availability of your services illustrated anything about Luttig’s appropriate level of compensation.

    Seriously, that “mockery” of Luttig was neither clever nor outrageous; it was just dull, and the only surprising point was that it was written by you. Yawn.

  15. Josh Wright says:

    Scott, I find your attempt to tie your point to “free-market labor economics” and Kennedy’s failure to apply economics unpersuasive for a different reason than Kate’s.

    You write that the disparity in pay between judge and law firm associate (or professor, or whatever) is

    “entirely logical, even predictable,

    under basic supply and demand principles. The

    supply of federal judge applicants is so high

    relative to the demand (i.e., the number of

    openings) that of course the pay will be low

    relative to the skills demanded.”

    But what basic supply and demand principles are you appealing to, here? You write here as if the law pay for judges was set by supply and demand rather than legislative action. To be sure, the gap in pay may well be predictable for some OTHER reasons … but it seems odd to appeal to the gap in pay with an appeal to “basic supply and demand” when judges wages are set almost entirely independently from these forces.

    Now, you may or may not be ultimately right about what type of impact an increase in pay will have on the supply of quality judges. This depends on the elasticity of supply. And the lack of data on the elasticity of supply here is well known but for some anecdotal evidence and is the reason I find most blog posts on this topic (including my own) don’t shed much light on the problem. But I do take issue with the assertion that we can treat judicial salaries *as if* they were set by the market for the purposes of analysis.

  16. Michael Lee says:

    Is there a crisis in judicial compensation? Not really. Judges at all levels are paid handsomely. The crisis seems to be one of relativity. It is true that lawyers in private practice make substantially more that lawyers at the bench. We must ask ourselves, how did this disparity come to be? It occurs because judges routinely allow, and in most cases encourage, make-work litigation. Opportunism is the heart and soul of the judicial-industrial complex. If judges let opportunists earn obscene fees for make-work suits, the compensation disparity between the groups is self-inflicted. If judges want to earn what private lawyers earn, let them stop enriching their private sector brethren. Turn the litigators away from the fee trough.

  17. Joseph Slater says:

    Good grief, I’m being attacked in a blog thread I have absolutely nothing to do with. Having said that, I couldn’t be happier to hear that Kate Litvak has “given up” on me. I will hold you to this Kate: this means that in the future, I will be spared the quasi-psychotic ad hominem attacks on myself, others, and scholarship you haven’t read that characterize so many of your spiteful yet substance-free posts.

  18. John Gabree says:

    I once suggested that the only political reform we need is to have elected officials be paid the average wage of the persons they represent. And no more. The highest paid senators at the time would have been Lieberman and Dodd, at about $46k. The lowest paid would have been, fittingly, Lott and Cochran, if I remember correctly at about $20k. Imagine, no health care. No free haircuts. No free trips home. No free gym. Somehow I think universal health care and similar reforms would not be long in coming. Would the level of ability decline? I doubt it. There are surely enough people in this country who would be happy to serve at much less than is now being offered. Even in the congressional district in east Los Angeles where the representative would make around $6,000.00 a year, many citizens would see getting a seat in Congress as a way to improve their situation.

  19. Kate Litvak says:

    Joe: which of my points exactly do you deny? That you have a penchant for citing “studies” that haven’t gotten through a peer-review process, and most of which were produced by partisan groups with obvious agenda? Or do you deny that going through a peer-review process conveys reliable (albeit imperfect) information about the quality of the article? Or maybe you deny that you don’t know enough econometrics to tell a good empirical study from a bad one, and therefore your recommendation alone conveys exactly zero quality signal?

    Or perhaps you deny that you’ve been going around the blogosphere claiming to present “facts” about the impact of labor unions on a whole bunch of things, even though most of those “facts” were produced by studies that do not use proper statistical techniques to establish causation? Or perhaps you deny that when you claim to present the state of current scholarship on labor economics in your blog comments, you never cite studies that contradict your personal agenda?

    I actually have read some of the papers that you linked before. Let’s just say, there is a good reason they aren’t published in respectable outlets. Have you read them? Would you like to tell us about serious causation and control issues those studies encountered and how they resolved those issues? (Applause)

    Boy, I wouldn’t want to be your student or junior colleague. If a brief and entirely correct summary of your blogospheric comments sends you into a screaming rampage, I can only imagine what happens to your critics whose lives you can affect directly. Trust me, I can say a lot more about your misuse of empirical evidence to promote your political agenda on blogs – and if I decide to do that, I wouldn’t even need to borrow the words like “psychotic” and “spiteful” from your very rich vocabulary.

  20. Joseph Slater says:


    Why can’t you quit me? You said you’ve “given up” on me, and yet you can’t shut up about me.

    On the substance, I deny your points. While you give no clues about what specific posts you talk about, I’ve cited books from university and other respected presses, articles from peer reviewed journals, articles from law reviews, and yes, a few studies from think tanks.

    Most folks on a legal blog would address the substance. And a long time ago when I thought you had a grain of intellectual credibility, in response to some typical shallow snark from you,, I suggested you actually post your substantive concerns. You, of course, didn’t.

    As to the words “psychotic” and “spiteful,” I can’t imagine using them about anybody else in the legal blogosphere, but your need to attack me in a blog thread I had nothing to do with — indeed, on a blog I’ve never even posted on before — speaks for itself, as does your entire blogging history.

    Is it irony that someone whose main contribution to the legal blogosphere is the banal, obvious, “but it’s not scholarship” point does so much herself to debase discussions on blogs?

    In any case, please decide whether you’ve “given up” on me, and if so, please try to stick to it. In the alternative, I’ll try to treat your obsession with me as some sort of twisted compliment.

  21. Scott Moss says:

    (1) Responding to Josh: I’m not sure I agree that “judges wages are set almost entirely independently from [supply and demand] forces.” I know that to some extent government employers aren’t capitalist players, but they can’t really “opt out” of supply and demand: if they pay too little (e.g., “judging is an honor, so you’ll work for free”), they’ll get too little good talent; if they pay too much, they’re paying more than they need for an ample supply of good talent. Gov’t is very much in competition for top legal talent with law firms, academia, etc. Sure, gov’t may not respond rationally to market forces (e.g., may not raise wages rationally when faced with too little talent) — but isn’t Kennedy going to Congress the process by which an employer responds to market forces? Specifically: when law firm X raises associate pay to $160K, at some other firm an employee will do exactly what Kennedy did: go to those who set wages and say, “we’re below market and can’t compete.” Maybe gov’t isn’t always rational in responding to market forces, but neither are all employers; I know employers who pay bewilderingly little and are amazed they can’t attract and retain the talent they claim to need.

    (2) Responding to Kate: I didn’t mean for my post to set off this level of vitriol, but when you start the bile flowing — i.e., by not only disagreeing with my post (as others did) but also declaring my post “juvenile” and gratuitously insulting somebody (Joe) who had nothing to do with this — then you can’t seriously be appalled that Joe is on what you termed a “screaming rampage”. If what Joe posted is a “screaming rampage” because he called you names and was snarky … well, you do that an awful lot more than Joe does. (So do I, for that matter, and while I sometimes descend to responding in kind, I admit, I rarely respond with “I can’t believe your tone!” mainly because I know I have unclean hands on that front….)

  22. Joseph Slater says:

    Thanks, Scott. Here’s a modest proposal: the rest of this thread should continue without me as a subject — or, for that matter, as a participant. Those of you interested in me can read my PEER-REVIEWED, UNIVERISTY PRESS book, info on the Cornell University Press website.