Scalia Argues for Better Judicial Pay
Justice Antonin Scalia revisited a familiar argument today, arguing we need to increase salaries for federal judges.
The federal judiciary will increasingly fail to attract the best- qualified lawyers if judges’ pay doesn’t improve, Supreme Court Justice Antonin Scalia said Wednesday. “If you become a federal judge in the Southern District of New York (Manhattan), you can’t raise a family on what the salary is,” Scalia said during a speech to the Northern Virginia Technology Council.
Federal judges earned salaries of $165,200 in 2006. Scalia said lawyers can easily earn significantly more by staying in the private sector. The result, Scalia said, is that the judiciary will increasingly appeal only to those who have made a career out of public-sector work. “More and more, we cannot attract the really bright lawyers. It’s too much of a sacrifice,” he said.
For one thing, it’s silly to say that you can’t raise a family in Manhattan on $165,200 a year. Even if we assume that this is the entirety of their household income, that’s an upper middle class salary even in NYC.
Moreover, how many people turn down federal judgeships on the basis of the pay? The fact is, there is no more prestigious a job in the legal profession than a federal judgeship, unless you count a higher level federal judgeship.
High prestige jobs are often relatively low paying, simply because the supply of highly qualified candidates outstrips the supply of jobs. Yes, judges could make more money elsewhere. So too could Congressional and White House staffers. Unless we’re having trouble attracting and keeping quality people, though, so what?
UPDATE (12/14): Looking for actual pay figures, I came across Ilya Somin‘s post on the subject from March. In addition to providing anecdotal support to my argument above, he observes,
What about the danger of good judges leaving the federal judiciary prematurely in order to make money? Here, we do have some data. Chief Justice Roberts’ report (link above) indicates that 92 federal judges left the bench between 1990 and 2005. Roberts claims that this is an alarmingly high number. However, there are currently some 678 federal district judges, 179 circuit judges, and 9 supreme court justices, for a total of 866. Justice Roberts’ figures indicate that about 6 to 7 of them leave the bench each year. That is less than a 1% annual attrition rate (even if we factor in the fact that the judiciary was smaller in the 90s than today)! Very few, if any, other occupations have such low turnover. This suggests that being a federal judge is an extremely attractive job, notwithstanding any financial hardship.
Moreover, the above analysis assumes that all 92 judges resigned because of dissatisfaction with pay. As Roberts notes, however, 71 of them resigned only after reaching retirement age (he actually emphasizes the 21 who resigned early, but the other side of the equation is surely more significant). It is plausible to assume that many if not most of these resignations were due to illness, old age, or a desire to enjoy one’s retirement years in peace. Federal judges who have reached the age of 65 and have served at least 15 years have the right to retire while still retaining their full salary. This creates a strong incentive to retire and cash in once the age of 65 is reached.
Despite the Luttig resignation, there is little if any evidence that the quality of the federal judiciary is suffering because pay is too low. Nevertheless, there are two potential caveats to this conclusion. First, it is theoretically possible that a large pay increase would attract at least a few more superstar types comparable to Luttig. If so, it might be worth it, given the disproportionate impact a superstar can have on the quality of judicial precedent. However, I am somewhat skeptical that this conjecture is correct. Second, I think there is a good case for making judicial pay inflation-adjusted and for giving cost of living adjustments to judges located in particularly expensive areas such as New York or San Francisco.
Agreed on all counts. Now, I have no qualms about paying judges (and Members of Congress, staffers, etc.) more money. The hit to the Treasury would be small. I’m just not sure there is any practical reason to do so.