No Just Compensation, Just Representation?

II: Chief Justice Roberts' Constitutional Crisis

The underpaid federal judiciary is an old story, told by the
succession of Chief Justices like a family fable passed down through
the generations. The moral of the story remains constant from Chief Justice Burger in 1969 and through Chief Justice Rehnquist's 19-year tenure.  The same complaint is now characterized by Chief Justice Roberts as a "constitutional crisis" in his end-of-year annual report for 2006. [4]  According to
the Chief Justice, the erosion of "judicial compensation will
inevitably result in a decline in the quality of persons willing to
accept a lifetime appointment as a federal judge." [5]  Chief Justice
Roberts also claims that the strength and independence of the federal
judiciary is being threatened, and in a time where the federal dockets
are increasingly overloaded. [6]  The Chief Justice asserts that some
first year associates in the largest corporate firms will earn more than experienced federal judges. [7] 

In
the Eisenhower administration, roughly 65% of incoming judges came from
the private sector and 35% from the public sector.  Today's ratio
reflects the opposite, wherein less than 40% of judges come from
private practice, and about 60% come from the public sector. [8] The
Chief Justice believes that this state of affairs is crippling our
judiciary in their constitutional role of servicing the United States,
because its composition is becoming less diverse.  Chief Justice
Roberts states that its incoming members are restricted to 1) the
independently wealthy individuals who can afford to take a huge pay
cut, or 2) the individuals who see the judicial salary as a pay raise.
[9]

III: The Judiciary Versus the Corporate Sector

For the
supposed lofty stature and cachet of a judicial office, the comparison
to starting salaries in the larger legal markets is humbling.  Compared
even to the average American worker, whose salary (when adjusted for
inflation) has risen 17.8% from 1969 to 2005, the salaries of federal
district judges fell 23.9% over the same period, creating a 41.1% pay
gap.  [10]   Meanwhile, from 1985 to 2001, the median starting salary
for all firms more than doubled from $31,700 to $80,000 and more than
tripled at firms with more than 1000 attorneys. [11]  Roberts himself
took an 80% pay cut when comparing the salary of Chief Justice to his
old position's compensation at Hogan and Hartson. [12] 

When
he was a partner at Hogan last year, Roberts received an "application"
for a first-year associate position from his friend Judge Luttig on
Fourth Circuit stationery.  The rationale for the joke was based on the
fact that a first-year associate's salary at Hogan was higher than
Luttig's own salary as an experienced federal judge.  [13].  The tables
are turned now, as Luttig has since left for the top in-house counsel
legal position at Boeing, a position that pays his old government
salary many times over.  [14]  Meanwhile, the Chief Justice's previous
corporate salary is merely a memory. Hogan, whose
partners earn at least $725,000 a year [15], just released a statement
on January 25, 2007 announcing that the starting salary for a
first-year associate would increase to $145,000. [16]   For comparison,
consider that District Court judges who are usually appointed in their
50s [17] and therefore have significantly more hard-earned experience
than your average fresh-faced law school graduate – earn only $165,000
per year. [18] 

Previous
to entering law school, this author worked for McKee Nelson LLP, a firm
that released an announcement on January 26 (coincidentally, a mere day
after Hogan's press release) that they would be setting the bar for the
highest first-year salary in the Washington D.C. law firm market at a
whopping $160,000 – not including end-of-year bonuses. [19]  "It is
always our mission not to lose someone because of money," declares
William Nelson, McKee's co-founder and managing partner. [20] 

IV: The Federal Judiciary – Crisis Free?

What, then,
is the American judicial system's mission?  Before one joins wholesale
with the Chief Justice's crusade for cash, it is imperative to further
examine whether or not the judiciary is truly losing out on real talent
as he claims.  Statistically, despite the dire picture that Chief
Justice Roberts paints, tenure trends actually remain stable from
1945-2000 [21], contradicting the assertion that there are an
increasing number of judges leaving the bench for greener pastures.
For a more complete picture of a federal judge's total compensation, it
is also important to include the "Rule of 80", a dream-come-true
retirement package that puts Social Security quite to shame.  In
essence, a federal judge can retire at age 65 or later, or when
his age
and years of judicial service total 80.  Afterwards, he continues to
receive his current salary for the rest of his life. [22] To receive a
pension in excess of six figures for the rest of one's life is a
benefit to be taken into consideration when examining judges' actual
compensation.

Moreover,
figures show that although there are some members of the judiciary
leaving at a relatively young age, their loss is balanced by members
that serve well into their nineties; and most serve into their
mid-seventies.  [23]  A study showed that only 21 out of the 209 judges
that resigned from 1789-1992 did so for inadequate compensation – the
majority resigned for age or health reasons. [24]  One of Chief Justice
Roberts' strongest arguments lies in his illustration of the increased
proportion of judges coming from the public sector since the Eisenhower
administration.  However, this trend may be explained from the simple
fact that the size and scope of the government has expanded greatly
since the 1950's, creating numerous additional public positions for
many more government lawyers.  This group now constitutes a greater
percentage of lawyers as a whole, which could explain the differential
of today's judiciary appointees versus those appointed in the 1950's.
[25]  Chief Justice Roberts also cites the statistic that 17 judges
have left their posts in the past 2 years, but fails to indicate that
these 17 constitute only 2% of all federal judges. [26]  Most personnel
or human resources directors in the private sector would envy such an
exceedingly low turnover.

V: Conclusion

Though there
is disagreement on the severity and degree of the alleged
constitutional crisis, it is uncontested that significant hurdles
remain in any scheme to raise the judiciary's pay.   The judiciary will
have to turn to Congress for a salary increase, when members of
Congress themselves make about the same salary.  Oddly enough, "no one
has noticed any steep decline in the ambition of able people to serve
in Congress as a consequence of the lousy pay."  [27]  Others point to
the the equally (if not more) hardworking public servants with less
prestigious titles of associate public defenders, deputy district
attorneys, and assistant attorneys general [28] – all of whom receive
significantly less in compensation and retirement benefits, and
certainly less recognition for their work. Further, at an economic
stage in America where jobs are being lost and the nation's deficit
grows, "it would be politically unpopular to recommend a significant
compensation increase for individuals whose salaries already surpass
that of most Americans." [29]    For illustrative purposes, Representative Don Koller of Missouri opposed an increase for judicial salaries in 1999.  The poor south-central Missouri district
he represented had an average annual salary of $15,000.  [30]   Koller
was heard to make the observation that there were 6 judges wanting
raises, and 32,000 of his constituents who thought all 6 were "already
grossly overpaid." [31] 

Non-sympathizers
of the judiciary's wage gap say that if these federal judges are all on
the verge of quitting for being underpaid when they knew of these
compensation limits prior to appointment to the bench, "they shouldn't
have accepted in the first place." [32]  Regardless of whichever side
anyone lands on, this country and its citizens are capitalistic to the
core, and free competition is the name of the game.  Edward B. Davis,
the former Chief Judge of the Southern District of Florida, commented,
"It's not the sort of situation you want. . . I went out and got a job
to take care of my grandchildren." [33]  The private
sector salary of a corporate attorney fresh off of the judicial bench
commands a high premium.  Davis stated,  "Federal judges can go down
the street and make two to three times what they make as judges." [34] 
He is not alone in his observations.  Former Judge Joe Kendall of the Northern District of Texas stated, "If federal judges were paid what an average partner in an average law firm
in an average city was paid," he said, " I'd still be on the bench." [35] If judges increasingly want to
leave the bench for increasingly profitable private practice jobs, it
is their personal imperative to do so, when given their options from
which to choose. Americans will then have to make their own difficult
choice, to decide which they value more: A long tenured judge, or a
lower-salaried one.

As a
last observation: Though Chief Justice Roberts primarily defines
diversity in terms of financial background, there is much to be said
for a different and more vital kind of diversity.  In Eisenhower's day,
there were few women or people of color on the judicial bench.  In
2001, women and racial minorites comprised a third of the federal
judiciary, representing a 68% increase from a decade prior. [36]
Before we lament alongside the Chief Justice that America is fast
losing the diversity of its judiciary, it is important not to overlook
the more obvious gains that have been made in the past ten years alone
– and to take his 'constitutional crisis' with a few grains of salt.

_{[1]  A Constitutional Crisis?, DR Partners d/b/a/ Las-Vegas-Rev. J., Jan. 4, 2007, at 1 [hereinafter Constitutional Crisis].}

_{[2] The Richest Women in Entertainment, Forbes, Jan. 17, 2007, available at http://www.forbes.com/2007/01/17/richest-women-entertainment-tech-media-cz_lg_richwomen07_0118womenstars_slide_14.htm.}

_{[3] Kristen A. Holt, Comment, Justice for Judges: The Roadblocks on the Path to Judicial Compensation Reform, 55  Cath. I. L. Rev. 513, 517.}

_{[4] Chief Justice John Roberts, 2006 Year-End Report on the Federal Judiciary, Jan. 1, 2007, at 7, available at http://www.supremecourtus.gov/publicinfo/year-end/2006year-endreport.pdf}.

_{[5] Id.at 1.}

_{[6] Id.at 1.}

_{[7] Id.at 2.}

_{[8] Id.at 3.}

_{[9] Id. at 7.}

_{[10] Id.at 3.}

_{[11] NALP Employment and Salary Trends for New Law Graduates, 1985-2000, available at http://www.nalp.org/content/index.php?pid=181.}

_{[12] Constitutional Crisis, supra note 1.}

_{[13]  Thomas W. Cranmer, Enough's Enough, Mich. Bar J., Aug. 2006, at 14.}

_{[14] Jerry Markon, Appeals Court Judge Leaves Life Appointment for Boeing, Wash. Post, May 11, 2006 at A11.}  

_{[15] Jess Bravin, Constitutional Crisis, at Least at the Roberts Household, Wash. Wire, Jan. 1, 2007,      
http://blogs.wsj.com/washwire/2007/01/01/constitutional-crisis-at-least-at-the-roberts-household/.}

_{[16] Nathan Carlile & Anna Palmer, O'Melveny Raises First-Year Salaries, Hogan Follows Suit, Legal Times, Jan. 25, 2007, http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1169719347534.}

_{[17] Albert Yoon, Love's Labor's Lost? Judicial Tenure Among Federal Court Judges: 1945-2000, 91 Cal. L. Rev. 1029, 1044 (2003).}

_{[18] Ilya Somin, Chief Justice Roberts Claims that Low Judicial Pay is a "Constitutional Crisis", Volokh Conspiracy, Jan. 3, 2007, http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167791582.}

_{[19] Nathan Carlile, McKee Nelson Sets New Bar for First-Year Associate Pay in D.C., Legal Times, Jan. 26, 2007, http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1169632950524.}

_{[20] Id.}

_{[21] Yoon, supra note 15, at 1030.}

_{[22] Holt, supra note 3, at 517.}

_{[23] Bravin, supra note 13.}

_{[24] Yoon, supra note 15, at 1050.}

_{[25] Emily Field Van Tassel, Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992, Fed. Jud. Center, 1993, at 51.}

_{[26] Somin, supra note 15.}

_{[27] Constitutional Crisis, supra note 1.}

_{[28] Matthew J. Franck, The Unpersuasive Chief: Are Judges Undercompensated? Maybe, but Chief Justice Roberts Doesn't Make the Case, Nat'l Rev., Jan. 2, 2007, available at  http://article.nationalreview.com/?q=YzRmZWVkNDRlMmFlNzA5ZGQzYzNkMmU4N2VlNWRhNGQ.}

_{[29] Holt, supra note 3, at 543.}

_{[30] Kim Bell,
Higher Salary Ceiling for Missouri Judges Now Rests with State Senate;
House Votes to Block Recommendation Endorsed by Citizens Commission, St. Louis Post-Dispatch, Jan. 27, 1999.}

_{[31] Id.}

_{[32] Somin, supra note 15.}

_{[33] Yoon, supra note 15, at 1030.}

_{[34] Insecure About Their Future: Why Some Judges Leave the Bench,  34 The Third Branch: Newsl. of the Fed. Cts. 2, Feb. 2002, available at http://www.uscourts.gov/ttb/feb02ttb/feb02.html#insecure.}

_{[35] Id.}

_{[36] Seth Stern, Less Esteem for Future Class of Judges that's More 'Professional'?  Christian Sci. Monitor, Mar. 7, 2002.}