Let me note briefly that I believe there should be an incerase in judicial pay and that there should be some variation in pay based upon the cost-of-living. While I do not find all of Justice Roberts’ arguments convincing, I believe tha federal policymakers should take seriously the magnitude of the opportunity costs faced by desirable nominees. Yes, the average federal judge makes lots more than the average attorney, but so what? I don’t want average attorneys as federal judges. I want high-caliber attorneys with discerning legal minds and the intellectual fortitude to make the proper judicial decisions without regard for the contemporary legal zeitgeist or “Greenhouse” effect. In other words, I want more judges like John Roberts, Samuel Alito, Peter Keisler, Diane Sykes, Douglas Ginsburg, and Michael McConnell, and future nominees like Miguel Estrada and Maureen Mahoney.
By analogy, it is common for law schools and business schools to pay their professors signficatnly more than profesors of equivalent rank in the humanities or social sciences. The reason is because, for example, the opportunity costs for quality law teaching candidates are typially far greater than those of someone with a Ph.D. in comparative literature. So, even if one thinks professors should be wiling to take a 30-40 percent pay cut for the privilege and other rewards of teaching, law professor salaries would still be well above most other parts of the university. This helps law schools get the professors they want, and I think a similar approach would help increase the quality of the federal bench.