A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment
posted by Scott Moss
[ 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.
February 21, 2007 at 10:28 am
Posted in: Current Events, Law Practice, Politics, Supreme Court
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Responses (22)
Paul Gowder - February 21, 2007 at 11:24 am
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.
Matt - February 21, 2007 at 11:36 am
The general point seems right, but Idaho has a population of more than one million people (about 1.4 million in 2004.)
Scott Moss - February 21, 2007 at 12:53 pm
I stand corrected: My apologies to the good people of Idaho (and their potatoes too).
Ned Ulbricht - February 21, 2007 at 1:16 pm
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.
Andrea - February 21, 2007 at 2:41 pm
“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.
Kate Litvak - February 21, 2007 at 4:32 pm
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.
Scott Moss - February 21, 2007 at 6:00 pm
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 HTTP/1.1 200 OK Date: Fri, 19 Mar 2010 22:52:42 GMT Server: Apache X-Pingback: http://www.concurringopinions.com/xmlrpc.php Connection: close Transfer-Encoding: chunked Content-Type: text/html; charset=iso-8859-1
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