Chief Justice John Roberts this week released, one minute into the new year, his second “Year-End Report on the Federal Judiciary” (available here ), and he decided to devote the body of the report (just eight pages, double-spaced) to one issue: the alleged inadequacy of judicial salaries. What is dismaying about the report is how unconvincing its arguments are. A case might be made for higher judicial pay, but Roberts uses feeble evidence for the undercompensation, coupled with hyperbolic claims about the consequences for the quality of justice in America — claims for which he has no evidence at all, and one of which even defies simple logic.
Roberts begins by noting that in 1969, federal district judges (the lowest-ranking Article III jurists) made considerably more than the dean or the senior faculty at Harvard Law School, and today they make far less. Since Harvard has traditionally had some of the highest salaries in the legal academy, the current situation is no surprise; but frankly, the 1969 statistic is a surprise, suggesting that 38 years ago federal judges were arguably overpaid, and those poor Harvard academics have finally regained their rightful position. (And given what we know of some of the Harvard faculty, do we really want to make the jump to the federal bench look financially attractive to them?)
Roberts’s second statistical comparison is a chart showing that the average American worker’s wages, in real terms adjusted for inflation, rose 17.8 percent from 1969 to 2005, while the salaries of federal district judges fell 23.9 percent over the same period. Making up the lost ground to the zero point — i.e., no change in real dollars since 1969 — might be a legitimate goal (but remember, we already have reason to suspect that 1969 was chosen as the baseline because judges were paid particularly well that year — also the year, by the way, that the president’s salary was doubled from $100,000 to $200,000 as Richard Nixon came to office). Instead, Roberts chooses to emphasize the 41.7-percent “gap” between judges and the average worker. And why should judges enjoy the fruits of an economic engine for which they provide none of the fuel?
The chief’s final statistical alarm bell is the increasing proportion of the federal judiciary drawn from prior judicial service or other public-sector work as lawyers, and the declining proportion who come to the bench from private practice. Here is how Roberts puts it: “In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice.” But why the comparison all the way back to the Eisenhower years? Perhaps because Roberts’s own chart shows that in the Nixon-Ford years (his preferred base for his previous comparisons), the numbers had already flipped, with more judges coming from the public sector than from private practice. And perhaps the numbers had flipped, among other reasons, because the number of public-sector attorneys had begun to proliferate rapidly in the 1960s. But these nuances don’t concern the chief justice, who simply asserts without evidence that “[i]t changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.” Maybe it does; I’m open to the possibility. But Roberts makes no effort to show it is so.
Now come the minor-key violins. “In the face of decades of congressional inaction, many judges who must attend to their families and futures have no realistic choice except to retire from judicial service and return to private practice. The numbers are sobering. In the past six years, 38 judges have left the federal bench, including 17 in the last two years.” Sobering? Without comparison to earlier “fat years” in judicial pay, the numbers are meaningless, and in fact they seem faintly ridiculous. There are over 850 authorized federal judgeships in the district and circuit courts, so Roberts’s 38 departures (for reasons unexplained, mind you) amount to fewer than 5 percent of those available seats, and his 17 for only 2 percent.
Roberts thinks we are reaching the point where only “(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,” will be willing to serve on the federal bench. He neglects a third possibility: persons for whom money is not the most important thing. Given his prosperous career as an appellate advocate, wouldn’t that describe Roberts himself?
So far, this is a performance unlikely to pass muster by the evidentiary standards trial judges apply every day. And Chief Justice Roberts hasn’t paused to note that federal district judges make the same pay as rank-and-file members of Congress, and major agency heads and deputy secretaries in the executive branch ($165,200 as of a year ago). Circuit judges make still more, not to mention Supreme Court justices. Is the chief prepared to entertain the possibility that members of Congress are underpaid? Not his business, he might say. But no one has noticed any steep decline in the ambition of able people to serve in Congress as a consequence of the lousy pay. And it will be an uphill argument — and rightly so — to make the case that judges ought to make more than senators and representatives. I want to see the chief (who is paid the same as the vice president, incidentally) make that case to the congressional judiciary committees.
But it gets worse. According to the chief, things are bad enough that we have a “constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.” In a word: balderdash.
Here is how Roberts reasons: Thanks to low pay, “the Framers’ goal of a truly independent judiciary will be placed in serious jeopardy.” How so? “Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law — even when it is unpopular to do so — will be seriously eroded.”
There is crashingly bad logic here. Let’s concede everything else in Roberts’s report, especially his unproven argument that alarming numbers of federal judges are fleeing for the exits so they can make more money elsewhere. Okay, so some judges appointed “during good behavior” are not serving out the full lifetime careers they could enjoy on the federal bench. This “threatens the viability of life tenure” only if one thinks that judicial longevity in office is in itself a virtue of some sort. But while no one wants judges to spend a mere three to five years on the bench and then leave, there is no reason to believe that serving for ten or fifteen before departure constitutes some calamity for the quality of justice.
And how does the “early” departure of judges, while still in their prime earning years, make “tenure in office . . . uncertain”? The answer is, it doesn’t. The certainty of tenure remains what it has always been. What might change—might, not has—is the reliance we can place on having the same judges around, year in and year out. That isn’t exactly the same thing.
And while it is true that a secure tenure in office, shielded from the winds that blow in politics, is necessary for the independence of judges and their ability to “uphold the rule of law,” there is no threat to such security in the “crisis” of “inadequate” pay. The shielding from politics the framers worried about was sufficiently provided by a) the appointment process, b) tenure during good behavior subject to removal by impeachment only; and c) the barrier to any reduction in judicial pay (as a means of legislative punishment for decisions). That’s it.
Chief Justice Roberts seems to consider judicial departures for greener financial pastures to be tantamount to subjecting federal judges to political pressures that will damage the integrity of the work they do in deciding cases and presiding over trials. But for this he has not only no evidence; he has no logical connective tissue.
There’s just one other thing worth noting. The chief’s eight-page report is followed by a seven-page appendix on the judicial workload in 2006. The workload report has always been part of the main body of the “year-end report,” but Chief Justice Roberts wanted all the focus to be on the salary issue, so this information is now merely appended. And what do we learn? That the numbers of cases filed and decided at all levels of the federal judiciary (with one or two anomalies) declined in the last year.
So put the two pieces together. Federal judges appear to be underpaid and underworked. Sounds about right, doesn’t it?