Posted by Orin Kerr:
How Much Should Federal Judges Be Paid?:
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167684364
Chief Justice Roberts' [1]Year-End Report on the Federal Judiciary
focuses on the salaries of federal judges:
This is usually the point at which many will put down the annual
report and return to the Rose Bowl, but bear with me long enough to
consider just three very revealing charts prepared by the
Administrative Office of the United States Courts.
The first shows that, in 1969, federal district judges made 21%
more than the dean at a top law school and 43% more than its senior
law professors. Today, federal district judges are paid
substantially less than -- about half -- what the deans and senior
law professors at top schools are paid. The next chart shows how
federal judges have fared compared not to those in the legal
profession, but to U.S. workers in general. Adjusted for inflation,
the average U.S. worker's wages have risen 17.8% in real terms
since 1969. Federal judicial pay has declined 23.9% -- creating a
41.7% gap.
Some of you may be thinking -- "So what? We are still able to find
lawyers who want to be judges." But look at the next and last
chart. An important change is taking place in where judges come
from -- particularly trial judges. In the Eisenhower
Administration, roughly 65% came from the practicing bar, with 35%
from the public sector. Today the numbers are about reversed --
roughly 60% from the public sector, less than 40% from private
practice. It changes the nature of the federal judiciary when
judges are no longer drawn primarily from among the best lawyers in
the practicing bar.
I have two thoughts in response. First, while I'm sympathetic to the
Chief Justice's basic argument, I think these three comparisons are
fairly weak. Law dean and top prof salaries have gone up a great deal
in the last 35 years in response to the changing nature of deanships
and a developing market for "star" faculty members. Neither change has
an analog in the nature of judgeships. Similarly, the decline in
judicial pay in real terms since 1969 occurred largely during the
inflationary period of 1969-1975; since 1975, salaries have stayed
roughly within the same zone in real terms. Finally, the higher
percentage of federal judges from the public sector could have many
causes, of which judicial salaries is only one, and I'm not sure the
change is necessarily a bad thing.
My second thought is that it's unfortunate that federal judicial
salaries are flat across positions. District court judges all earn one
salary, circuit court judges all earn another. This means that
district court judges earn the same $165k regardless of where they
sit, how many cases they hear, and whether they are the living
reincarnation of Learned Hand or an embarrassment to the bench. So
long as raising the salary for any judge involves raising the salary
for all of them, judicial salaries will be much too low for some and
too high for others. Of course, uniformity serves important interests,
both practical (how do you measure judicial quality?) and
constitutional (see [2]Article III, Section I). But I wonder whether
there might be some way of breaking out of the uniform salary bind
without interfering with those interests. For example, would be it be
out of the question to pay judges in districts with higher costs of
living more than judges in less expensive districts? Perhaps this is
unrealistic or unfeasible, but I wonder if it might help address the
Chief Justice's concerns without requiring Congress to raise salaries
across the board.
References
1. http://www.scotusblog.com/movabletype/archives/Roberts%202006%20report.pdf
2.
http://www.law.cornell.edu/constitution/constitution.articleiii.html#section1
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