February 17, 2007

"An Awkward Plea."

Don't forget to read my column in the NYT about Justice Kennedy wrangling with the Senate Judiciary Committee. My conclusion:
Low judicial pay should trouble us not because the judges will somehow lack “excellence.” It should trouble us because the law will be articulated by ideologues and recluses.
This is the first of five columns, so look for me on Saturdays and Tuesdays.

30 comments:

paul a'barge said...

Not free. Won't read them. Ever.

hdhouse said...

and sharing the page with Maureen Dowd as well.

I'm sure your column will bring a spark of letters to the editor. I know I am writing mine.

just a thought, go to midtown..or lower east in the 20s and 30s and drop in a local coffee shop or deli. engage the good folk therein about the judicial pay scale and what they think of the issues you raise. tell us what they say.

Too Many Jims said...
This comment has been removed by the author.
Ruth Anne Adams said...

But did you write it at your "magic table" in your lonely outpost in Madison, Wisconsin?

Too Many Jims said...

Nice first sentence.

As to your conclusion (of course I didn't read anything after the first sentence), I would not conclude that low pay will result in the law being "articulated by ideologues and recluses." I think the most that can be said is that the law will be articulated by people who are willing to work for less money than their peers (i.e. people who have similar educational background and intellect). The same could be said for professors at most law schools. If, for instance, some law professors didn't have an aversion to billable hours or 9 to 5 jobs, they could make a lot more.

There may be good reasons to look suspiciously upon people who are willing to work for less than what they are "worth" but concluding that they are "ideologues and recluses" seems a bit hasty. (Again, I didn't read the bulk of the piece because it is behind the wall.)

AJ Lynch said...

Ann said:
"This is the first of five columns, so look for me on Saturdays and Tuesdays."

That seems like too much work for me- can't you just remind us when it's in there? :)

MikeLawyr2 said...

You said: "Low judicial pay should trouble us not because the judges will somehow lack 'excellence.' It should trouble us because the law will be articulated by ideologues and recluses."

I think it's a mistake to look at it at the margin. Sure, at the margin, an ideologue may be more willing to take the leap into an underpaid position. But unless you set Supreme Court pay at a level where **anyone** can have a nice house, feed their kids, take a vacation now and then, etc., you cut out a whole class of potential applicants. So that's the question: at $200k a year (approximately), can a justice do all that in Washington DC? I live in NYC -- not very different from DC in terms of cost of living -- and the answer is, "Hell no."

Michael Ganzer said...

Ann:

You could not be more wrong in your assessment as to the quality of the judiciary being commensurate with pay. Justice Kennedy was absolutely right. A good microcosm of the problem can be seen in our Wisconsin judiciary. Because the pay is so low (compared to private practice), the value in working as a Circuit Court Judge is the retirement benefit which requires 20 years of service. The result is very few lawyers will cap off a career with a judicial appointment. Rather, the game is to get to the bench by age 40 so a good retirement can be had. The result is too many unskilled lawyers, many who have had some difficulty in private practice, seeking the bench with few wiser, more experienced lawyers competing for the positions. Add the cost of contested elections and the result is a very mediocre judiciary. Many such examples here in Milwaukee County. Sorry to say, Justice Kennedy is 100% correct.

Ann Althouse said...

Madison Man: Kennedy was talking about the pay for all the federal judges, not just the Supreme Court justices. I don't think money is such a huge factor at the Supreme Court level, although you only get to that level -- in all likelihood -- if you spend some time on a lower federal court.

Flexo said...

the law will be articulated by ideologues and recluses.

The law has been articulated by ideologues and recluses for at least the last 35 years, not the least of which has been Anthony Kennedy. For all this low pay, I don't see very many folks leaving the judiciary, especially the Supreme Court. Instead, I see folks digging in their fingernails until they die and they need to be dragged from the bench.

Federal judges have something more important than money -- POWER. And at the Supreme Court, they think that they have supreme power. If they could constitutionally cut judges' pay, they would nevertheless stay on the bench.

The level of pay has little to do with the quality of judges.

JohnK said...

The solution to ideologies being judges is to get rid of lifetime appointments. Judges should be allowed to sit on the bench no more than ten years for the districts and circuits and fifteen for the Supreme Court. Further, you should only get one appointment in your lifetime, no reappointments, except maybe taking an experienced district or circuit judge and giving them a Supreme Court appointment but that is it.

Any system of appointment is going to favor people with political connections and scholars who never practice law. That system doesn't take into account someone judicial temperament or their actual understanding of the practice of law. If you limit the length of appointments you create more turnover and hopefully get a more diverse class of judges. Look, there are only so many political hacks and professor geeks out there. Moreover, the terms were limited it would lower the stakes for confirmation and perhaps make them less life and death struggles.

Being a federal judge should be a short sabbatical a lawyer takes from a successful legal career. It should be moderately paid and offer not retirement. In short, it should not be a profession. Moreover, being a judge ought to be a position for the middle aged not the old. The ideal judge is someone who experienced and successful but young enough to understand how law is actually practiced and energetic enough to handle the workload himself rather than relying on a bevy snot nosed often ideological and inexperienced clerks. Many of our federal judges are simply too old for the job. I seriously doubt that even someone with the fortitude and courage of Thurogood Marshall had the energy to sit on the bench in his later years.

Increasing the pay of federal judges will just worsen the problem of having too many ideologues and hermits on the bench. The better paid the position is the more it becomes an end in itself and a place where the politically connected and fanatical go out to pasture.

JorgXMcKie said...

I truly believe that you can trace many of governmental problems to the changeover from 'public service' of citizens elected or appointed to office to 'career' types (elected and appointed) who then spend large amounts of time attempting to feather their nests and whining about how underpaid they are compared to those who work in the for-profit arena.

Let them resign and get real jobs and be replaced by those who want to spend a shorter time doing a 'public service.'

I see no evidence that a 30-year career on the bench makes one a great judge, and a lot of evidence that plus-20 years in elected office makes one a lousy 'citizen representative.' We should at least Amend the Constitution to put in a mandatory retirement age of 75.

Simon said...

I'm officially too interested in Ann's view for my own good - I drove five miles through flurries of snow to buy the New York Times. I think I have to hand back my GOP membership card now. ;)

On the matter of cameras, it was emminently predictable that Specter would use the opportunity to push his agenda, because that's what Senators do - that's all any member of the judiciary committee did during the Roberts and Alito hearings, after all. Congress has no power to impose cameras on the court, and I fully support the Justice's determination (1) to retain the choice for themselves and (2) to refuse to let the cameras in.

On the matter at hand, I agree with Ann to some extent, and I also agree with Justice Kennedy's assesment, although I think he applies that assesment to the wrong group. I agree with Ann insofar as the problem with Ruth Bader Ginsburg or Steve Breyer isn't that they aren't very good lawyers, or inadequate thinkers or or ineffective writers - the problem is that they regard their job as being to fix what's wrong with society. They are "ideologues who see in the law whatever it is they think is good for us," as Ann puts the point (we might quibble about what and who an ideologue is), and they would accept and have accepted a seat on the Supreme Court for far less money than they could make in private practise.

(I disagree with the assertion that what we need is more "common-sense" judges - that seems like a codeword for using O'Connor-style consequentiualist reasoning of the kind that leads to cases like to the plurality opinion in Hamdi. I'm more of a fiat justitia, ruat coelum guy).

On the other hand, I think Justice Kennedy is correct to this extent: when considering government jobs for lawyers, the appropriate salary comparison isn't other government jobs, or even the average wage in America; it is the amount of money that they could be making in private practise. The wage of a judge, who could with his skillset in another career make millions, cannot be tied to that of a Congressman, the average of which, with his skillset, would otherwise be one of those squeegee guys you used to see at stop lights. However, for the reasons that Ann raises, the issue here isn't judgeships, which will always be attractive; there are, IIRC, 188 seats on the Supreme Court and circuit courts of appeal; it is not difficult to find 188 people of the kind that Ann (rightly, if we agree on the definition of "ideologue") wants to keep off the bench who will work for the not exactly niggardly salary of a federal judge. Being a judge has its own rewards.

With that having been said, Justice Kennedy has identified the correct principle, even if he has applied it to the wrong target. The correct target -- as Sen. Durbin, not a man I frequently agree with, has to his credit identified -- are public defenders and public prosecutors. Those are the jobs whose salaries most need expanding. Those are the jobs which demand real sacrifice for little reward (compare the life-tenured Federal judge). Look at how much these people make and look at how mcuh law school costs these days. I can speak from personal experience, to some extent: Although there are a couple of reasons why I can't go to law school, the most pressing is that to pay back the loans that stack up on the salaries paid by the kind of legal jobs I'd want to do is virtually impossible. The reality is that when you owe $200,000, if you take a public defender's job, that means you can't get a better job, or you've got more heart than brain. The latter is at least admirable, but I don't think either are exactly the skillset we want.

The last thing to say is that several years ago, Metallica sued Napster for copyright violations and caught hell for it from pro-p2p folks. Metallica argued that file sharing was stealing from artists and depriving them of the ability to make their livelihood from music. Of course, they were accused of hypocrisy; Metallica were and are hugely rich and were at the time likely to shift an inordinate number of any record they released, Napster notwithstanding. One can well imagine Lars Ulrich telling the court, "it's frankly most awkward for me," just as Justice Kennedy told the judiciary committee. I don't find any fault in Justice Kennedy, and I think that's because I found no fault in what Metallica did. It seemed obvious tome at the time that Metallica were going up to bat for someone other than themselves - for other bands, for smaller bands who don't have the money to pay a crack copyright litigation team. It wasn't just about people stealing from them, it was about defending bands who lacked the resources to defend themselves. Likewise, I choose to construe Kennedy's request as beggin not for his own supper, but for that of other federal judges of less stature, for those who can command less authority than one of The Nine. And there's no dishonor in that.

Wade_Garrett said...

Salary is less of an issue at the Supreme Court level, because the prestige is so great that even the very most qualified people would want to work there.

However, even the Circuit Courts of appeal, the nation's second-highest courts, lose judges to the private sector. One recent, high-profile example was Judge Lutting of the Fourth Circuit. The risk is even higher at the district court level. I have no doubt that there are died-in-the-wool conservatives and liberals out there who are so eager to leave their mark on the law that they would do it for $40,000 a year, but those are precisely the people you don't want to see within five city blocks of the judiciary.

The truth of the matter is that a first-year associate in a big-city law firm earns about $150,000, plus a bonus. Circuit court judges earn as much as a third-or-fourth year associate. How can you expect people to earn that salary for the rest of their lives?

Simon said...

Wade:
"The truth of the matter is that a first-year associate in a big-city law firm earns about $150,000, plus a bonus. Circuit court judges earn as much as a third-or-fourth year associate. How can you expect people to earn that salary for the rest of their lives?"

For sake of argument, I suppose the obvious rejoinder is that while (absent radical happenings like abolishing the Ninth Circuit) a Federal judge may spend their life earning the same salary as a third-or-fourth year associate, they have that salary guaranteed for life. You trade more money for ironclad job sefcurity. If you're a fairly conservative (not necessarily in a political sense, but in terms of personality), not especially risk-inclined person, you're apt to be the tortoise not the hare. And surely, that kind of sober, cautious, patient - dare we say, judicious - person is precisely the sort of personality type that you want in a federal judge.

hdhouse said...

oh wade....a fresh out of school associate isn't worth two buckets of shit let alone $150k. He/she is an hourlybillablebody.

If I retain one more attorney who's first words are "i'll have to research that..."...what the hell. i'm not paying you to get smarter, i'm paying for what you know.

the entire issue of overpayment/underpayment for lawyers and then popped up to the judiciary is just maddening by for the average joe. as i suggested earlier...go up to a deli or coffee shop and ask how many think that lawyers and therefore judges are underpaid. i hope you escape with your life.

somefeller said...

Wade Garrett said "The truth of the matter is that a first-year associate in a big-city law firm earns about $150,000, plus a bonus. Circuit court judges earn as much as a third-or-fourth year associate. How can you expect people to earn that salary for the rest of their lives?"

Most people in this country get by on a lot less than $150,000 per year, so I can expect a lot of people to earn that salary for the rest of their lives. Also, I'm not sure if big-city big-law-firm attorneys should be the benchmark for salaries. Most lawyers (including many good lawyers) don't ever work for such firms, and even if you focus on such firms, many of those who work there only do so for a few years then go work elsewhere, often for less pay but a more normal lifestyle.

I would agree that Federal judges should get paid more than their current salary schedule, but the idea that they are somehow financially deprived is difficult for me to take seriously. Plus, lifetime tenure in a job that involves no heavy lifting and in which even the wealthiest and most powerful attorneys in your town have to kiss up to you is its own reward.

Wade_Garrett said...

HDHouse - Oh, really? You work in advertising. How much are you "worth," you arrogant son of a bitch?

Ours is a market economy. You're worth whatever someone else is willing to pay you. Law firms fight tooth and nail for the right to hire first-year associates at the salary of $150,000 per year. If the same was true of your deli or coffee shop patrons, then they would be earning $150,000 per year, too. But they're not. On the other hand, 90% of Federal judges could resign today and have five or ten higher-paying offers from law schools of private firms by tomorrow night.

Wade_Garrett said...
This comment has been removed by the author.
Simon said...

Wade_Garrett said...
"HDHouse - Oh, really? You work in advertising. How much are you "worth," you arrogant son of a bitch?"

Howmuch HDH is worth, plus the fare on the New York Subway, will get him into the New York Subway.

Simon said...

somefeller said...
"I'm not sure if big-city big-law-firm attorneys should be the benchmark for salaries."

Well, the comparison, surely, has to be to what the person could be earning instead, because ceteris paribus, if you can make $150k a year in one job and $50k in another, you're going to take the former. Now, for federal judges, all else is obviously not equal: lifetime tenure and - depending on how persuasive you are - the chance to advance your political agenda (see this cartoon mocking Jon Adler, for example - d'you want the kind of third-rate fifth columnists who think that it's a "hairline distinction that do[esn't] actually exist" to bifurcate the normative merits and constitutional permissability of the death penalty sitting on courts? Not likely) are neat inducements. That's true even sub-SCOTUS: Richard Posner and Frank Easterbrook jump to mind as sitting circuit judges who've had significant impact on the law (another reason why I'm proud to call the Seventh Circuit home, even though I don't really agree with Posner). But for non-judicial jobs, where all else tends to be very much equal (if not less, in fact), such as public defenders, I really think that the benchmark should be "what can the kind of people we want to attract make in private practise."

somefeller said...

A few points:

I don't think the point of analysis should be what Federal judges could make in the private sector after being judges. That salary figure is warped, among other things, by the fact that the title of "former Federal judge" has a certain cachet that is separate and distinct from actual talent as a litigator (I'm assuming a judge wouldn't quit to become a deals lawyer, which is a different skill set). It would seem to me the focus should be on whether candidates are being discouraged by the pay scale going in, not what the pay would (theoretically) be if they leave.

Also, as Simon himself has stated, all things are not equal when one is talking about Federal judges. If that is the case, then we really shouldn't spend time on an all things being equal discussion, should we?

Last, I have a general skepticism of (i) the pure efficient market argument that an person will always be paid at his or her job what he or she is worth (that doesn't take into account non-financial factors for the potential employee or financial factors for that employee that exist outside work, such as separate income sources, both of which would affect that person's choice of jobs and therefore ripple out into the income calculations) and (ii) the belief that skill sets are fungible, a belief that seems to be implicit in this discussion. On the latter point, just because someone is a good judge doesn't necessarily mean he or she will perform at that level as a litigator, and for that matter just because one is a good law professor doesn't mean one would be a good lawyer, and vice-versa, etc., etc.

Make no mistake, I think Federal judges should be paid more. I just don't think it's a crisis.

Simon said...

somefeller - I'm really not sure that I'm important enough to be "Simon himself." ;) I'm not a federal judge posting incognito. ;)

I was a little puzzed by your statement that you "don't think the point of analysis should be what Federal judges could make in the private sector after being judges" - I'm not sure that's quite the situation at hand. Michael Luttig, whom Wade alluded to, is an unusual case, and frankly I find it hard to take the financial motive seriously in his case (I think he was bored as a circuit judge, wanted desparately to be on the Supreme Court, and hung in there until it became apparent with the Alito nomination that he wasn't ever going to get there). We're not talking, in the main, about existing judges quitting (so I agree that the comparison isn't what judges could make in private practise having left the bench), at issue, I had thought, is inducement of people to join the bench in the first place, and thus the argument is that salaries should be related to what they could potentially earn in private practise by refusing the robe.

And FWIW, I should add another important point: I don't think anyone's arguing that a Federal judge should necessarily make as much money as star litigators. Rather, the argument is that the relevant comparison when discussing how much they should be paid is what such people could be making in private practise, and whatever we decide to pay them should be influenced by and measured in relation to private salaries. I don't think anyone's talking about tying judicial pay to the average associate's salary in the top five New York law firms. No one's saying that public service shouldn't involve sacrifice, only that it shouldn't involve so much sacrifice that the only people willing to do it are "ideologues who see in the law whatever it is they think is good for us," as Ann puts it - or "beady-eyed cause-y people," as Our Hero put it.

vbspurs said...

I'm officially too interested in Ann's view for my own good - I drove five miles through flurries of snow to buy the New York Times. I think I have to hand back my GOP membership card now. ;)

Simon, I might just have to do that too.

Only I'm way cheaper and way lazier than you are, so I'll flick through a NYT copy at my local Starbucks. ;)

Congrats Ann! For a New York kinda gal, having a regular column is a big big deal.

Even if I think they're not worth my time.

Cheers,
Victoria

somefeller said...

Simon, it seemed to me that an emphasis was being put on judges leaving / being tempted to leave the bench, mainly because of the Luttig discussion and Wade Garrett's comment that "90% of Federal judges could resign today and have five or ten higher-paying offers from law schools of private firms by tomorrow night". While that point may be true, my point was that we should focus on the entry point, not the possible exit point for judges. It appears we are in agreement on that one.

I also agree that one should certainly look at what the private sector is paying attorneys in making compensation decisions for judges. However, NYC or other big-city, big-firm jobs are only one part of the private market, so I'm not sure that should be the prime point of comparison. It certainly shouldn't be the sole point for comparison.

Also, the private sector as primary point for comparison is watered down in a profession like law, in which many talented people are not in the private sector, but in government or academe, and even many of the private sector jobs are in in-house positions, which themselves have different incentives than law firms (better hours, meshing in with pure business side of company, stock options in some cases).

hdhouse said...

oh wade..you silly!

what i said and you failed to read is go ask people in a coffee shop if some 25 y.o. with a jd is worth 150k right out of the chute..no experience, just 45 hours of law school.

give it a break wade. if you have to promote your selfworth when others think it is a bunch of BS, then your only real value is self promoted.

B said...

hd,

I thought you'd be with Ann an' everyone at the Althouse dinner!

Cedarford said...

There may be good reasons to look suspiciously upon people who are willing to work for less than what they are "worth" (adding outside the quote - judges and law professors acc. to their claims) but concluding that they are "ideologues and recluses" seems a bit hasty.

I would be concerned if large masses of seasoned, good lawyers start saying they would love to be employed by the government, but anything less than 200,000 would mean poverty and eating dog food to survive. And all those government jobs go for the begging of qualified candidates. I'll believe it when the CEO, government lawyer shortage becomes obvious.

Obviously, for 99.8% of the people that live and work in "expensive cities", working for less than 200,000 dollars is "survivable" because they themselves make considerably less than that.

And underpaid lawyers and "lawyer shortages" elicit the same sympathy and the "poor, underpaid CEO phenomenon" and the "dire shortage of potential CEOs," claims, do.

If judges do leave, like other "executives" in society do, for different or better jobs, or because they lose in power struggle - that "churning" is generally good. The rest of society has moved away from "lifetime jobs" with the same company working with the same people. And the argument that a judge or prosecutor or ex-Senator with real rainmaker ties can leave and land a multimillion dollar job is no argument to have to pay all schlubs in the same category nationwide, multimillion dollar salaries as top lobbyists, consultants, deal makers...

My feeling is hold the line on lawyer pay and see if they would give up lifetime appointments and/or Nifong-like job security for TRULY competing in the marketplace. Meaning Kennedy could lose his job tomorrow if a rival lawyer convinces the taxpayer they could do Kennedy's job better or for less money. That if there is such a lawyer or CEO shortage, we start up new CEO or lawyer schools to crank out the numbers needed, as we do with pilots, special ed teachers, software engineers - or call them jobs like beanpickers, domestics - jobs no American will do - and import the needed lawyers or CEOs.

Wade Garrett - Ours is a market economy. You're worth whatever someone else is willing to pay you.

No, we are not. Some jobs are truly open market. Others are controlled in entrent supply by a cabal of professionals that self-license, set market price on what the pay should be, and in some way or another, greatly influence the compensation process (CEO search committees meeting at the same country club their well-known candidates also are members of, candidates who have or possibly will be on their peers hiring or compensation committee. So serious mutual backscratching is the order of the day.)

On the other hand, 90% of Federal judges could resign today and have five or ten higher-paying offers from law schools of private firms by tomorrow night.

Yet they don't.

And if the "severe high paid lawyer shortage" was a fact, then we would set up the schools and incentives to crank out aspiring little bloodsuckers like we can crank out GIs or genetic research technicians...or if it was too expensive here, from a hundred University of Bangalore, Manila law schools that could be set up to spit out lawyers with a 90% chance of passing USA Bar exams for a net cost of 40,000 per future esquire.

Or say that we have too many lawyers, that they are overpaid, and we need to restructure America so we need far less lawyers sucking up middlemen costs of society that didn't exist in our past. (Only Israel has more lawyers per capita than America. Some successful European and Asian nations manage with 1/th to 1/6th the numbers we have, and pay lower and is similar to other ministers, bureaucrats, and professions (including teaching) with similar educational level.

hdhouse said...

b....the dinner...

the idea of being in a room full of lawyers gave me the willies.

Simon said...

Somefeller:
"NYC or other big-city, big-firm jobs are only one part of the private market, so I'm not sure that should be the prime point of comparison. It certainly shouldn't be the sole point for comparison."

True, but the problem is that salaries for federal judges are set nationally, and so can't really take into account local variation.