Judicial Compensation Redux: Pay or Power

Steve Bainbridge weighs into the long-running debate over whether we need to raise judicial pay in order to attract and keep the highest caliber legal minds.

Responding to Jonathan Singer‘s argument that “being a federal judge offers intangible benefits, such as the power to interpret law and the ability to play a role in leading the country, that are not offered outside of government,” Bainbridge retorts, “I’d rather pay judges in cash than in power.”

While I share that preference, it seems likely that upping judicial pay would simply create rich, powerful judges.

Jock Ewing counseled his son Bobby that, “Nobody gives you power. Real power is something you take.” Most of the power that advocates of a restrained judiciary dislike is, in that sense, real power. From Marbury on, judges have been so influential because they create thin constitutional pretexts for their policy preferences and dare the elected representatives of the people to do something about it. There’s no reason to think paying them more will change that.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Alex Knapp says:

    From Marbury on, judges have been so influential because they create thin constitutional pretexts for their policy preferences and dare the elected representatives of the people to do something about it.

    I think that this is more than a little disingenuous. Legal interpretation is complicated, and people with years of experience and who have devoted enormous energies to the study of the law can arrive at different conclusions. While policy preferences may influence such interpretation, they are hardly dispositive. Judges make decisions against their own policy preferences all the time. This is particularly true at the appellate and supreme court levels.

  2. James Joyner says:

    Alex,

    I’m thinking about constitutional interpretation at the appellate level rather than trial work, here.

    It’s true that judges are asked to make complicated rulings and that many of them reluctantly rule against their policy preferences. Most of what limited judiciary advocates refer to as “activism,” though, is heavily imbued with a judge’s ideology rather than an honest reading of what the plain text of the Constitution and/or a statute say.

  3. legion says:

    Of course, there’s also the other side of the coin – the laws judges have to base their decisions on come from Congress. Maybe it’s just me, but every time I hear this discussion start up, it always feels implied that whatever Congress puts out as a law is inherently “good”, and that any changes or out-and-out smackdowns handed back by the Judiciary are “activist” and therefore inherently “bad”.

    Don’t forget – there is a basic minimum of training/education and compentence judges have to posesses – there’s no such test for Congress!
    🙂

  4. Dave Schuler says:

    The pay for judges should be exactly what’s necessary for the judges to live in the fashion that we wish our judges to live in and not a penny more or less. The people who we want to be judges are those who would do it for free if they could afford to not those who are looking for a path to wealth.

  5. Alex Knapp says:

    James,

    Most of what limited judiciary advocates refer to as “activism,” though, is heavily imbued with a judge’s ideology rather than an honest reading of what the plain text of the Constitution and/or a statute say.

    But that’s just the problem, isn’t it? Both the Constitution and statutes frequently employ words and phrases that make it difficult to ascertain by just looking at the “plain text.” Differences in judicial interpretation comes to play when the “plain text” isn’t really that plain at all.

    Take the Fourth Amendment, for example:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Using only the text of this Amendment, it’s unclear as to how it applies. For example, nowhere in the Constitution is the word “reasonable” defined–so how do you know when a search or seizure is unreasonable, based solely upon the text of the document? Further, if you look at the whole amendment, it could easily be read to imply that there should be a warrant issued for any search or seizure. But you could also just as easily read it to say that a warrant is unnecessary, so long as the search is not “unreasonable.”

    Terms like “restrained” and “activist” with respect to judges have, in my opinion, far less to do about the philosophy of statutory interpretation, and far more about how a particular person interprets a particular statute in a particular way, based upon their own policy preferences.

  6. I would imagine that there would be some person of good ethics who would decide that as much as the prestige benefits may be at being a federal judge being able to make 2x/3x/4x/whatever x in private practice outweighs the advantage. And so, that desirable person self selects themselves out of the process. Meanwhile, the person who is so sure that their way is right that all should be happy to follow it will be attracted to the position almost irregardless of wages because they can then impose their will by judicial fiat.

    But if you step back, I think the confirmation process would be a bigger barrier than pay. Would you be willing to express any question on the wisdom of Griswold and go before a senate confirmation hearing no matter who was in the majority?

  7. You know the expression “cut their pay and send them home,” as applied to Congress? Implicit in my preference for paying judges in cash rather than power is the notion that we find a way to reduce their power. Whether that’s practicable, however, I suppose, is in part rebutted by your Dallas parable.

  8. Beldar says:

    I’m an opponent of judicial activism. But that’s only an issue in maybe 1% of the cases before any judge, if that. The other 99% is the routine grist that’s ground finely through the mills of the judicial system. Whether justice gets done in those individual cases, though, is incredibly important to the litigants in them, and having a system in which something approaching justice gets done most of the time for most of the litigants is awfully important to society.

    Trial lawyers sometimes say, “You never want to try a case in front of a judge who took the job to get a pay raise.” If inadequate salaries are driving downward the competency of the overall bench — the risk of which is, I believe, Chief Justice Roberts’ point, and I think it’s definitely true at the margins — then individual litigants and the public at large will suffer, notions of “power” notwithstanding.