The Situationist

The Situation of Judges

Posted by The Situationist Staff on December 23, 2008

Situationist contributor, Adam Benforado published another terrific op-ed last week, “Get the Best Legal Minds on Courts” (in the Seattle Post-Intelligencer).

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Missouri Sen. Claire McCaskill wants you to know that fat cat federal judges are not going to ruin Christmas — not on her watch, anyway.

Last Thursday, she railed against a cost-of-living increase for the judiciary that was included in the auto bailout plan being debated on the Senate floor: “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay.”

McCaskill’s attack won her praise from fiscal conservatives, but it represents the naïve thinking that puts our nation in peril.

The reason federal judges do not take pay cuts is because the Constitution explicitly provides that during their terms of service, judges’ salaries may not be reduced.

The Founders afforded strong job protection to members of the judiciary because they knew it was vitally important that a judge be able to reach the correct decision in a matter, even if it was unpopular. They foresaw that there would be cases like Brown v. Board of Education, ending segregation, where a minority’s rights might not be ensured if the majoritarian branches of government could punish judges. As Alexander Hamilton warned, “Power over a man’s subsistence amounts to a power over his will.”

The current call for fairly remunerating judges is not about greed or selfishness; it is about getting the best legal minds — strong and unfettered — onto our courts.

Between 1969 and 2007, the wages of federal judges, adjusted for inflation, decreased approximately 25 percent, while the real pay of the average American worker increased approximately 19 percent. Although some individuals undoubtedly would seek membership in the judiciary no matter what the compensation, the raw data suggests that the salary discrepancies have had a real effect: In the past two decades, numerous Article III judges have left the bench for more profitable positions at firms, companies and law schools.

What do we risk by failing to increase judicial pay? In the words of Chief Justice John Roberts: “If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the framers’ goal of a truly independent judiciary will be placed in serious jeopardy.”

Just as important, we risk having a less qualified and less diverse set of federal judges deciding the most important cases in our country, with potentially devastating effects.

Set a bad precedent and hundreds of dangerous criminals end up back on the streets. Fail to understand the nuances of a complex litigation matter and a multibillion-dollar company goes bankrupt. Err in interpreting a statute and thousands of children develop respiratory problems from air pollution.

McCaskill is right that the proposed increase would have a cost, but, in the end, it seems like a small one to pay.

Just how small? Even if we were to increase judicial salaries by 100 percent — dwarfing the 2.9 percent adjustment that McCaskill so vigorously assailed — the total bill would be one-hundredth of 1 percent of the federal budget.

Nonetheless, with her misleading and divisive remarks, the senator from Missouri won the day. Members of the judiciary will be the only federal employees who will begin the new year without a cost-of-living adjustment.

Talk about injustice.

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To read some related Situationist posts, see “The Situation of Judicial Methods – Abstract,” The Political Situation of Judicial Activism,” “Ideology is Back!,” “The Situation of Judges,” “Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.

2 Responses to “The Situation of Judges”

  1. Richard Schell said

    Dear Situationist Staff:
    Thank you for the article about the failure of Congress once again to include federal judges in the cost of living adjustments that all other federal employees routinely receive. As in the years 1994, 1995, 1996, 1997, 1999 and 2007, judges will see their real compensation diminished again. In those years when judges have received COLA’s, the percentage increase is always less than what other federal employees receive and less than the actual rate of inflation, and there is never a catch-up COLA to restore our diminished compensation. Perhaps our only option to make up some of the ground lost to inflation over the years is to get part-time jobs teaching or doing other things allowed under the Judicial Code of Conduct. Thanks for writing about our “situation”.

    Richard Schell
    U. S. District Judge
    Eastern District of Texas
    U. S. Courthouse
    7940 Preston Road
    Plano, Texas 75024

  2. Stentor said

    The number of people who left judgeships because of the pay is said to be “numerous” — but without knowing what the actual number is, that doesn’t tell us much. We’re also asked to simply assume that more pay necessarily attracts better workers — a pretty crudely economistic assumption for a psychology blog. Considering we’re talking about six-figure salaries here, perhaps judges who are so fixated on money and so attached to a top-few-percent lifestyle *aren’t* the best for the job.

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