Henderson on Judicial Pay: Constitutional Crises Everywhere or Nowhere?

Josh Wright —  27 January 2007

Bill Henderson has a nice post on Chief Justice Roberts’ claim that judicial pay has reached the point of creating a “constitutional crisis.” Lots of bloggers (see, e.g., my colleague Ilya Somin at VC) have made the point that they are not impressed with the data the Chief has mustered in favor the assertion that the quality of the federal bench is likely to suffer as the gap between judicial pay and pay in private practice widens (or that a shift in composition of the federal bench towards fewer lawyers from private practice is a demonstrably bad thing, much less constitutional crisis). Most of this discussion has involved pointing out weaknesses in the Chief’s empirical evidence in support of his claim and some educated guesswork about the relevant elasticities of supply for high quality judicial candidates with respect to pay.  Though I think it it is very difficult to say something meaningful about these elasticities without data.

In any event, I think Bill’s post adds something new by attempting to reframe the debate a bit and raising some issues I had not thought about in relation to the Chief Justice’s plea for more compensation.  The first is that federal judges make much higher salaries than their state counterparts and so, as Bill writes, “it appears that we also have several dozen ‘constitutional cris[es]’ at the state level.” Second, Bil notes that while Am Law 50 partner and CLO salaries have grown dramatically as of late, both federal judiciary and solo/ small firm compensation has not done nearly as well. Bill asks why this gap in pay does not trigger the same sorts of concern over the independence of lawyers more generally?

These are both interesting points. With respect to state court judges, I presume that Chief Justice Roberts (if confronted with the data) would be more than happy to advocate for higher salaries in state court as well. But Bill is certainly right that if a gap in judicial / private pay creates constitutional crisis, we may be in the middle of more crises than we knew!  With respect to the plight of the solo/small firm practitioner, however, I’m not sure I follow what Bill is getting at. One obvious difference between judicial pay and practitioner pay is that the latter is set in the market in response to economic forces rather than by Congress in response to political forces. In other words, if the market sets much higher compensation levels for big law lawyers than solo practitioners — this is a valuable signal about the best use of lawyerly resources. In that setting, it is difficult to understand the sense in which these attorneys are underpaid, or why the gap would be problematic at all.
Third, Bill writes that:

“district and appellate judges working in large metropolitan areas will likely live in smaller homes or endure longer commutes. And the Judge’s kids may have to apply for loans to pay for college or law school, including federal Stafford loans, which are the lifeblood of higher education. In other words, their problems will be more like 98% of the American electorate, albeit still very much at the high end. Why is this a “constitutional crisis”? Some of us might call it “sensible policy.””

While I think that my prior is to agree with Bill’s punchline (and the position taken by most bloggers I’ve read) that this is not a constitutional crisis, I’m not quite sure that I agree with this third point. It depends who is on the margin doesn’t it?  And that depends, again, on the relevant elasticities. One possibility is that in expensive metropolitan areas the marginal candidate will be the one Bill describes. It is also quite possible that the marginal candidate in such areas is sufficiently wealthy such that the pay cut in going to the federal bench has little effect on the family’s financial well-being (though the Luttig examples suggests the former certainly does occur).  In any event, my point is only that it is really hard to talk about prospective changes in the composition of the pool of candidates without better data than we have (and are likely to have given the nature of these decisions) on candidates.

9 responses to Henderson on Judicial Pay: Constitutional Crises Everywhere or Nowhere?


    Bill: Even if federal judges have been doing as well as federal workers until now, that may only be because successive Chief Justices have been making successive pleas of the type that the current Chief has made. Indexing would end all that and let the Chief and Congress and pundits to focus their efforts on other things.



    I am skeptical that increases in federal judge pay is lagging the pay of other federal workers, though I could be wrong (and thus your suggestion might solve the problem). Note that, in my original post, I showed that federal judges are actually doing better, in terms of real pay increases, than prototypical law partners 25-29 years into practice. That is a pretty good reference good.

    But I definitely could be wrong that federal workers are doing better than judges. It it unclear to me whether that would address the Chief Judge’s concerns. bh.


    Bill–My suggestion to peg federal judicial pay increases to those received by other federal workers would actually lead to real increases rather than merely be a way to keep up with inflation.


    Josh, I definitely concede that higher pay will affect the applicant pool. What I am skeptical of is the idea that it will smoke out demonstrably better jurists. The fact that a lawyer makes a high salary does not necessarily denote that he or she has better experience, temperament, or aptitude to be a judge. And I think that is the subtext of Robert’s argument.

    The current pay of federal judges could easily produce asymptotic levels of jurist abilities. If that this true, then higher judicial pay would have zero marginal benefit to the public–though the sitting judges would be happier. Further, realistically quantifying “good” versus “better” judges may be an insurmountable technical issue.

    So we may be back, in the end, to our own prejudices and intuitions. That is why this is such a devilish issue.


    Bill, like I say in the post, I don’t disagree with you that the “independence” question is a stretch. I also agree that the burden is on the Chief. The fact that we have “some pretty sound jurists,” however, does not eliminate the interesting question of whether an increase in pay would have a marginal increase on quality. I take part of Roberts’ concern to be that the pay issue means we have a lower quality pool of candidates to choose from then if we increased pay. Surely you would agree that an increase in pay would have *some* effect on the composition of potential jurists? Right?

    In my mind, the truth of that assertion seems indisputable (upward sloping supply curves and all) though you are certainly right that reasonable minds can disagree over whether the quality of the current stock of judges. As I write in the post, I think answering the “what would happen if” question turns on understanding how the composition of possible candidates might change in response to such a pay increase. I do think that is an interesting question, but don’t think we have data that helps answer that question.



    To Keith Sharfman, at least for the last two decades, federal judges have handily beat inflation, though the incomes of many lawyers have not. The Chief Justice is asking for a substantial real pay increase on par with elite private sector practitioners.

    To Josh, with all due respect, the “independence” question is a red herring. After an FBI investigation and congressional hearings, we have vetted some pretty sound jurists. If they were interested in maximizing their income, they never would have accepted the nomination. The burden is on the Chief Justice to spell out the mechanism by which “independence” will be compromised, and I don’t think he can articulate one that does not insult every sitting federal judge.

    Only the “strength” question has any (plausible) traction. That is a difficult empirical case to make, though I readily concede that reasonable minds can definitely disagree on the pay gap’s putative effects. bh.


    Keith, indexing seems like sensible policy whether the gap in judicial v. private pay is a crisis or otherwise.

    Bob, of course, it is also true that judges face non-pecuniary costs that those in private practice are less likely to face as well. In any event, the question is not whether they should make as much as judges. The question is whether we should be worried that the size of the gap in pay threatens judiciary independence. I don’t claim to know the answer to that question, nor the size of the gap that would trigger such a threat if any.


    Why not index judicial pay to increases in the cost-of-living (e.g., the consumer price index or inflation or to the percentage pay increases given generally to federal workers) and thereby obviate the need to have this debate every year or two?


    Remember that being a judge has significant non-pecuniary benefits. Prestige and power mean more than money to many judicial candidates. For precisely this reason (IMO) we shouldn’t pay judges as much as they might get in private practice.