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.

FILED UNDER: Economics and Business, Law and the Courts, , ,
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. 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. ________ Related: Scalia Argues for Better Judicial Pay JUDICIAL PAY FLAP JUDICIAL PAY [IMG]

  2. Wickedpinto says:

    It was a botched joke.

  3. Anderson says:

    Unless we’re having trouble attracting and keeping quality people, though, so what?

    That is, I think, the unspoken premise of the argument. A justice can’t very readily come out and say “my god, these district judges nowadays are idiots!”

  4. James Joyner says:

    Anderson: True that. Still, this argument has been ongoing for years and I see little evidence that it’s true.

  5. Wonkette says:

    Rumors On The Internets: Kill What You Eat, Eat What You Kill…

    Justice Scalia has never known the agony of interpreting the Constitution on an empty stomach, wants the same for impoverished Federal Judges. [Outside the Beltway] The best idea Tom DeLay has to drive traffic to his blog is blaming……

  6. Scott says:

    It wasn’t meant as a joke. Scalia thinks that you can’t raise a family in Manhattan on $165K a year because everyone HE hangs out with earns much more than that. You know, the private-school-only, country club set.

    Also note the dig at career public sector workers–obviously second rate in Scalia’s eyes. I wonder if he will tell the career MD’s and Ph.D’s at NIH, career staff at the military hospitals and academies, career foreign service staff in the State Department and long-termers in the Department of Justice that they are all the dregs of the barrel?

    What an idiot! Talk about professional low-life.

  7. Billy says:

    This is crap. At least half of the best lawyers would give up their high-paying jobs without a second thought for the opportunity to be a federal judge. The other half wouldn’t do it for all the money in the world. Well, maybe -all- the money…

    In what world is 160k a year not enough to raise a family, anyway?

  8. Wickedpinto says:

    Scott, I was making a kerry-esque excuse.

    If you don’t study hard, and have low income expectations, then you might end up stuck IN ONE OF THE MORE PRESTIGIOUS POSTS A LAWYER CAN HOLD!

    I was hoping that my crude aspect was understand, but I’m not crude here, so I screwed it up.

  9. Cernig says:

    I suggest we give them all – judges, senators, congresscritters, president and all appointed officials – a pay CUT. To the same pay as a pfc on active service sounds about right. Teach them something about humility as well as service.

    Regards, C

  10. BozoRebozo says:

    People — read up on the real estate market in Manhattan. Median price, about 750,000 simoleons. Average, 1.3 Million. You can’t even buy the median apartment on a Supreme Court Justice’s salary.

    And most of the judiciary is paid less. Your basic judge has three choices — make a fortune BEFORE becoming a judge, live B&T, or take bribes.

  11. Anderson says:

    Your basic judge has three choices — make a fortune BEFORE becoming a judge, live B&T, or take bribes.

    The potential for the latter should not be underestimated; it’s the rule for the judicial profession throughout the ages, not the exception.

    Note the rather spooky trajectory of Judge Luttig from the 4th Circuit, now corporate counsel somewhere. I do NOT suggest any misdeed by him; it’s just a hint that, lifetime app’t or not, judges definitely could see a % in issuing some favorable rulings for megacorps, then getting jobs therewith.

    If it’s not happening yet, it will.

  12. James Joyner says:

    Bozo:

    Federal district judges make $165,200 a year. Appeals and Supreme Court judges a bit more. That’s in the upper percentiles even in Manhattan.

    The average house in the DC area is in the same ballpark as in NYC. Most of us make substantially less than $165k and are doing just fine.

  13. sluggo says:

    “More and more, we cannot attract the really bright lawyers. It’s too much of a sacrifice,” he said.

    So how did we end up with your sorry ass, Tony?
    But you have a point. When you pay bottom-dollar for a judge, you get what you pay for. Solution: either out-sourcing or let the market decide. (I learned the latter from Milton Friedman.)

  14. DrJohn says:

    My wife works for a Federal Judge so I know more than I should.

    Federal Judges have not had a pay increase in many many years. I think it is in excess of 10 years and I’ll check with Ms. Grouchy to see the actual number. The Judges are paid for life. Normally Judges get paid well above the average to insure limited interest in bribery, well, taking a bribe.

    There is a certain amount of status in being a Federal Judge, but the relative low compensation actually reduces the available pool. My guess is, if the Judges pay increases kept up with the pay of non Judges they would be getting near $350k at the moment.

    Now before you get in a huff, there are only around 1,000 Judges. They need to be the best available and above reproach. The cash keeps them honest.

    Dr John

  15. James Joyner says:

    Dr John: Federal judges have gotten a pay increase EVERY YEAR just like every other federal employee. The only difference is that they don’t get locality pay like civil service types.

    Here are recent pay figures for federal District Court judges (the lowest and by far most common type):

    2003: 154,700
    2004: 158,100
    2005: 162,100
    source

    The article above has it at 165,200 for 2006.

  16. madmatt says:

    Poor tony…he has contacts I am sure he can find something in the private sector!