No Just Compensation, Just Representation?

by Karen Lee February 15 2007, 19:28

I. Introduction

To attain the office of the Chief Justice of the United States is to reach the culmination of a prestigious legal career in public service.  It is a guaranteed opportunity to go down in the history books, to impact the world - some might even call it attaining "legal immortality." [1]

But if this is so, why is Judge Judy making more than 100 times Chief Justice Roberts' salary?  Her $25 million annual salary [2] makes Roberts' newly inflated one of $212,000 [3] appear as laughable as some of the more ludicrous plaintiffs that walk into her made-for-TV courtroom.

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 Bench34 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.

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