Last week, we wrote about federal judge Stephen Larson’s decision to step down from the bench because of unrequited salary longings. He said his salary of $169,300 was not enough to support his family. We’re skeptical of a six-figure salary not being enough to support a family, but Larson does have seven kids and lives in Los Angeles, so it may not be entirely ridiculous.
Plus, his salary would be much more likely to keep pace with seven future college tuition bills if he were making the big bucks as a Biglaw partner. His resignation led us to ask if judges really are underpaid. We threw the question to you via a poll. ATL readers were torn: 52% of voters said judges are underpaid, while 48% of voters said they’re not underpaid.
Ashby Jones at the WSJ Law Blog weighed in on judicial pay (and recounted a story about how a judge screwed him over when he was a law student interviewing for clerkships). Jones points out:
[I]t’s unreasonable, in all likelihood, to expect that federal judges should make what the average BigLaw partner makes. But it also strikes me as unfortunate that the federal bench should lose Larson, who presided over the recent dispute between Mattel and MGA Entertainment over the rights to the Bratz doll (and, incidentally, a judge I’ve heard to be exceptionally hard-working) over financial issues.
If judges were to make more, how much are we talking? The SCOTUS justices make just over $200,000, with John Roberts raking in $217,400. Should all judges be making that much? It is public service — are the rewards of respect and being called “your honor” enough to make up for the salary shortfall?
Blake Denton, who is clerking for Eleventh Circuit Judge Phyllis Kravitch and joining Latham & Watkins next week, argues in a Drexel Law Review article that a crisis is coming if Congress doesn’t honor the judiciary with a pay raise.
Denton writes in the article available via SSRN:
The Framers sought to insulate the federal judiciary from political influence by granting federal judges the constitutional guarantees of lifetime tenure “during good Behavior” and, through the Compensation Clause, “Compensation which shall not be diminished during their Continuance in Office.” Although Congress has not actually decreased the pay of federal judges, which would be an obvious violation of the Compensation Clause, it has accomplished the functional equivalent of a salary cut by failing to increase the pay of the federal judges; instead, standing idly by as the quality of life one can lead on a judicial salary declines.
This Article argues that Congress, in its treatment of judicial pay, has violated the spirit and possibly even the letter of the Constitution.
So it may be unconstitutional, but Denton argues that what’s really at stake is “the integrity of the federal judiciary”:
(1) there will be less diversity on the federal bench; (2) more judges will retire once they have attained the requisite age and service requirements; and (3) fewer top legal professionals will seek federal judgeships.
On the positive side, we’ll likely have even more nominees for ATL Judge of the Day.
Chief Justice Roberts wants his fellow judges to make more:
Chief Justice Roberts acknowledged that pursuing a career on the bench entails sacrifice and that federal judges do not expect to receive salaries on par with lawyers in private practice, however, he emphasized the enormity of the decline in judicial salaries by comparing them with the strides in American wages over the past four decades. According to Chief Justice Roberts, once adjusted for inflation, the average U.S. worker’s wages rose 17.8% since 1969, whereas federal judicial pay declined 23.9%, “creating a 41.7% gap.” At a time when Americans’ quality of life has improved, federal judges have seen their spending power shrink.
Roberts wrote that though in 2006, when times were better in the U.S.A. In these recessionary days, it’s hard to push for a raise.
Denton argues that pay increases will improve diversity and reduce the politicization of the judiciary. “Diversity” in this instance means more Biglaw types.
Chief Justice Roberts argued that deficient pay reduces the number of elite attorneys that are willing to pursue federal judicial appointments. He noted that, at the time of the Eisenhower administration, roughly 65% of federal judges came from private practice and 35% from the public sector, but by 2006, “the numbers are about reversed–roughly 60% from the public sector, less than 40% from private practice.” Chief Justice Roberts found this trend problematic because “[o]ur judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.”
Chief Justice Roberts’ point is important because it highlights the necessity of diversity on the bench — not just in terms of race and gender — but rather wealth, legal experience, and background.
We’d like to see more Biglaw partners join the judiciary, but we doubt Congress can push salaries high enough to make that the selling point for would-be judges.
The Federal Judicial Salary Crisis [Social Science Research Network]
With Larson’s Resignation, Judicial Pay Back in the News [WSJ Law Blog]
Earlier: Judge Stephen G. Larson Resigns Because Judges are Underpaid (But Are They Really?)