Bench Memos

The Chief Soft-Pedals It

In his third year-end report on the federal judiciary (see all recent reports here), Chief Justice John Roberts returned to the subject of “equity” in the pay judges receive, though this time his “tone was softer” than a year ago, as Linda Greenhouse reported in the New York Times.  For the most part, the chief’s report was a boosterish case for the overall wonderfulness of the American federal judiciary, which will strike different readers differently depending on how plausible they think that wonderfulness is.  But his brief case for an increase in judicial salaries is no more persuasive than it was when he expatiated on this subject for his entire report last year (see my criticism of it here at the time).  Don’t get me wrong: I’m perfectly open to being persuaded that federal judges ought to be paid more.  I just think Chief Justice Roberts does a really lousy job of making the case.

This year Roberts praises the House Judiciary Committee for reporting a bill, by a vote of 28 to 5, that (in the chief’s words) “strikes a reasonable compromise” by (he alleges) catching them up with the cost of living adjustments other federal workers have had in the last two decades.  He wisely declines to name the figures set by this House bill (and Linda Greenhouse misreports them in the Times, though Robert Barnes gets them right in the Washington Post): under H.R. 3753, judges at all levels of the federal courts would receive pay raises of 41.3%, ranging from district judges (a raise from $165,200 to $233,500), to the chief justice himself (a raise from $212,100 to $299,800).  Judicial salaries would be “de-linked” from congressional pay, or executive pay for that matter.  (Currently the chief justice makes what the vice president earns, but would outstrip him under this legislation.)  As the Congressional Research Service points out (in a recent report I discussed here last week), this bill would set “the highest real salaries federal judges have received since at least 1913.”  The chief justice is fond of citing 1969 as his benchmark for judicial salaries–a year in which salaries were at their highest in recent decades–but in real dollars the district judge salaries proposed in H.R. 3753 would be about 11% higher than in that golden age.

And would these new salaries solve the nonexistent “crisis” of judicial resignations, retirements, and refusals to be nominated?  Not if the object is to be competitive with other sectors of the legal profession.  Senior professors at “top 25″ law schools, the CRS reports, earn $330,000 and have a much easier life in many respects than federal judges.  And as the chief justice himself reports, with his own italics to highlight the affront to judicial dignity, district judges earn “about the same as (and in some cases less than) first-year lawyers at firms in major cities.”  Now the judges would earn more–for the time being–but the proper comparison is to the experienced lawyers who have made partner and earn far more than those first-year associates who (in some cases) earn more than the judges with whom they just completed clerkships.

Half-heartedly compared to the Sturm und Drang of last year’s report, the chief asks us to consider “how America would look in the absence of a skilled and independent judiciary.”  The trouble is that once again he has offered no evidence for any impending dearth of skilled jurists.  And he has offered no logical linkage–none whatever–between the pay judges receive and the independence of the judiciary.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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