Balkinization: Roughing It

Comments:

You make some very fair points. I am wondering, however, whether you think it is relevant that Justice Scalia has nine children, that this choice is related to his religious views, and that he presumably feels that the same choice should be available to others. Do these facts cut in favor of his argument, or against it?

# posted by

Anonymous : 9:28 AM

Mark, your post is off base on a number of counts, but you might want to start by looking at 28 USC s134(b). LI is not in the SDNY, it's in the EDNY. And I don't think your town is within the requisite 20 miles of the Foley Square courthouse. You might want to get your facts straight before you post. Southern District judges can't live on most of Long Island and still be Southern District judges.

Although you're correct that many people on LI get by on $165,000 per year, you are making assumptions about things that aren't warranted. The average partner at a major NYC firm makes substantially more than $500K per year. If you take seriously the idea that federal judges should come from the ranks of the most able, the size of the pay cut you are asking people to make is enormous and, in recent years, growing. It's one thing to take a pay cut; it's something else entirely to see your income down by 75% or more. No, you don't have to be a big firm partner to be a federal judge - there are plenty of public servants who have made and are making good federal judges - but I don't want a district bench composed solely of former public servants. We need business people too, especially in a district like SDNY.

I'm not a partner in a big firm and I make more than a federal judge, but quite a bit less than twice what a federal judge makes. I have a kid in college and I live in a small house in Eastern Queens. I drive a Chevy, which I don't drive to work - I take a bus. I pay more than half my earnings in taxes. I couldn't afford to be a federal judge, even though I think it would be a great job and a great honor, because it would be financially irresponsible and a disservice to my family.

To be blunt, it's clear you hate Scalia more than you like facts. Scalia is 100% right. Gated communities have nothing to do with anything. That business about walling oneself off with money is a caricature, and you really should know better. Maybe you should get out of the ivory tower a bit.

# posted by

boldface : 9:37 AM

I agree with boldface. This was a poorly-thought out post. Writing on a topic you apparently don't have any understanding of leaves you open to all kinds of charges. More importantly, it undermines your credibility on other points.

PS: I'm from LI and there are precious few gated communities there. And the A&P left a long time ago.

# posted by

Anonymous : 10:11 AM

Graber's little attack is very petty. The point Scalia raised is brought up by many judges and individuals on both the right and the left. Either they all are the "worst" of our founders or are greatly at odds with our values or they are not.

I mean, just a few months ago, at a conference at my law school for "Judicial Independence Day" or whatever it was called, several federal judges (mostly from the left) all agreed with that sentiment.

# posted by

humblelawstudent : 11:06 AM

Why "Scalia's" values? I'd say the whole judiciary is far too insulated from the public, and certainly the entirety of the Supreme court is.

# posted by

Brett : 12:40 PM

Petty, off base, poorly-thought out or not, you still have to deal with these facts that the post raises:

1. Scalia said "If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary is."

2. The median income of a New York City household is $38,293.

3. A federal judge makes $165,200. That is, a single wage-earner makes more than 4 median New York City households.

Now tell me again how tough federal judges have it. Is Scalia out of touch with the economic realities of society? I'd say so.

Were the framers more in touch with society at large than Scalia? I think that's a more difficult question.

# posted by

Anonymous : 1:04 PM

PMS,

Quick point, there is a huge difference between Manhattan specifically and New York City as a whole.

# posted by

humblelawstudent : 1:20 PM

HLS: Manhattan is different. So let's look at Manhattan. From wikipedia: "The median income for a household in the county was $47,030, and the median income for a family was $50,229. Males had a median income of $51,856 versus $45,712 for females. The per capita income for the county was $42,922. About 17.6% of families and 20.0% of the population were below the poverty line, including 31.8% of those under age 18 and 18.9% of those age 65 or over."

So judges make only 4x the per capita income, a little over 3x the median family income.

The central point of the post is that the vast majority of the country--the overwhelming majority of *Manhattanites*, even--manage to live off of far less than judges. Your rejoinder is that these judges could make far more doing other things. This is true but not exactly a counterargument.

If the current salaries are indeed too low to get qualified people, that's quite an indictment of our legal profession. Is it really so rare to find top-notch talent unwilling to trade massive wealth for upper-middle-class wealth + plus ultimate job security, even for the sake of a fascinating and important public-service job?

# posted by

Anonymous : 2:31 PM

Judge Richard A. Posner, in The Federal Courts at 34 (2d ed. 1996), recommended abandoning geographic uniformity in setting judicial salaries, by targeting future raises at districts where the cost of living is highest. Typically, this suggestion is provocative, but politically unpalatable.

# posted by

Anonymous : 3:00 PM

Another point I perhaps missed in my skim of these comments: Sure, we want the best and the brightest. But who the hell said they are motivated by money? I'll take a judge who turns his back on cash in search of service. Those are values to which most of our rw vandals can't even pay lip-service. Scalia may have chosen to have a large family (that whole "personal responsibility for your choices" stuff does apply to Scalia, doesn't it?) and we know he enjoys hob-nobbing with Cheney, but I, for one, hope some of our judges have motives, and values, other than those of wealth, power and prestige which so seem to drive Scalia.

# posted by

Robert Link : 3:28 PM

X,

You are countering an argument that I didn't make (maybe someone else did). But, I'll go with it.

There is nothing wrong with wanting individuals that aren't driven by green or a need for money. But, let's just catalog what they are giving up.

I'd bet most federal district court judges, let alone appeals court judges could be partners at any one of the nation's top law firms.

For example, at my firm, the equity partners make close to one million a year (with some firms going well over a million). I'm not saying we should pay judges anything close to that.

But, around one million to 165k is quite a pay cut. The whole point of paying judges well is to give them security -- and hopefully they are less likely to be bribed. Through a decent salary, we are more likely to attract good candidates (who no matter what will be taking huge salary cuts to become judges).

Now, yes this 165k is more much than what the average family makes. But, skill and talent come at a price, goodwill alone does not a good system make. I'd rather pay for the talent. It's just a fact of life.

# posted by

humblelawstudent : 3:51 PM

[quote]
PMS,
Quick point, there is a huge difference between Manhattan specifically and New York City as a whole.
[/quote]

I totally understand that point. Of course, it is somewhat rendered moot by federal judges' ability to live 20 miles outside the district, which fully encompasses New York City, if I'm not mistaken.

When I got offers from schools, I was offered a very nice package by NYU and a lesser (but still nice) package from Chicago. I did quite a bit of research, and although there were other factors as well, one big strike against New York was the potential difficulty of living there on 24-25k a year.

Now, if they had offered me 165k a year, I probably would have jumped at the offer. :)

All of which is not to say that I think federal judges are overpaid. I agree that people should be paid what they're worth, and all those years of working your way up through the legal ranks should give you something.

But to say 165k is insufficient to raise a family...it's a perverse inversion of Rousseau's "great princess." Scalia to the masses: "Let me eat cake!"

# posted by

Anonymous : 4:37 PM

hls: ...skill and talent come at a price...It's just a fact of life.

Other facts of life not taken into account here include privilege, the dirty-word complement to opportunity which the rw seems unable to speak. Let's talk percentages of those "top firm partners" coming from, say, Ivy League dynasties versus first generation attorneys like Bart (and, Bart, I mean that in all sincerity as a compliment to you for having made the hurdle. Truly. I'm working to make much the same jump.) What you list as "skill and talent" are still damningly correlated to having the wisdom to choose the right parents.

# posted by

Robert Link : 5:29 PM

Robert,

Yes, having successful parents is correlated to the children being successful. Your point? Yes, it isn't fair. But what exactly are you proposing and how exactly does that bear on the question before us?

At the very least, these top firm partners have gone through years of education and making it to the top isn't easy. Its regular 60-70 hour work weeks at these firms for their entire lives. Yes, it does pay, it pays well. I'll hardly know what to do with my huge paychecks for next summer (I'm sure I can find things). But they do work hard at it. (Yes, I know that plenty of other people work hard and get paid less -- my point is that they aren't like aristocratic land owners dallying around on the rents they recover from their land ownings, see England).

Okay, that was kind of random, but oh well. That's what happens when I'm drinking wine, celebrating that I'm done with finals.

# posted by

humblelawstudent : 8:09 PM

HLS: That's what happens when I'm drinking wine, celebrating that I'm done with finals.

w007! Hope they went well.

My point about privilege is a) most of the "right" seems unable to address the phenomenon at all, b) Scalia in particular would be more credible if he weren't hunting buddies with the qauiltard killer. Enough about that later. You will have garnered by now that Justice Scalia has a special place in my heart---and the center ring of Hades if I'm any judge of such matters.

# posted by

Robert Link : 9:43 PM

Sandra Day O'Connor recently said in a C-Span interview that she would not choose to go into law again in this day and age and era of American history because it's all about "the money". Everybody ready now here come da judge. I'm sure the former justice wasn't referring to Scalia exclusively, but one has to wonder if the other judges were to judge the judge on issues of money would they all concur the same thing as honestly as Sandra Day O'Connor?

# posted by

Anonymous : 10:31 PM

Yah, well, I don't think anyone should be a businessperson, because its all about the money . . . Oh wait . . .

Yes, many lawyers make obscene amounts of money. But hey, our skills are highly valued. If they weren't, lawyers wouldn't make the money that they do.

But my purposes isn't to defend private practice salaries. My point is that for better or worse, decent salaries are needed for judges. And the price we pay for their services is a heck of a lot less than what they would charge a corporation for their time in private practice. Heck, the taxpayers are getting a steal on these people.

Can you imagine what (insert favorite judge/justice) could charge per hour?

# posted by

humblelawstudent : 1:19 AM

@hls: maybe so, but who will pay for this (huge) increase in salary? Read my lips, no new taxes.

But hey, the world is burning out there (consider the other posts) and we are discussing the salary of federal judges?!

# posted by

Anne : 5:55 AM

@hls: I'm sure you have a sense for my feelings about Justice Scalia in general. I've written too candidly in other places to pretend neutrality, although I do strive to show him the respect due his office. I wish he would do the same.

The main point of my comments, which you seem to miss, is that no one ever should think they are motivated by money alone. While there may be legitimate reasons for building models of human action based on users and utiles, just as there are legitimate uses for bi-valent thinking and the law of the excluded middle, reality is nonetheless significantly more complex. Great danger, and danger of great evil, comes from over reliance on such models when they predict outcomes which fly in the face of reality.

Above all our most powerful civil servants, our Congresspersons, our Presidents, our Police Officers and our Judges should indeed be actively and consciously motivated by things other than money, things like Justice and Liberty. If those are not first and forefront in their choice of profession they should do something else. And it is no argument that the majority of people are motivated by more venal energies, that my view is an ideal one. You can abandon yourself to venality, or you can strive for the ideal and preach conscience to power at every opportunity. It's really your choice. I trust I have made my choice clear.

@Anne: Yes, the world is burning, but it continues to spin. And when a supposedly responsible jurist like Scalia puts forth nonsense like this it is also worth challenging.

# posted by

Robert Link : 11:25 AM

Anne and Robert,

I haven't said there should be any huge increase or even an increase necessarily. I was just defending the current salaries.

And yes Robert, I do wish for judges to be motivated more than by greed. But, I'd say people losing 90% of their income is quite a sacrifice -- what else would you call it?

# posted by

humblelawstudent : 1:38 PM

HLS: But, I'd say people losing 90% of their income is quite a sacrifice -- what else would you call it?

A straw man. ;)

Scalia said one could not support a family on $165,000. Our host contradicted the claim and included a few trenchant social observations to boot. The rw vandals (a group of which you most certainly are *not* a member) jumped salty in defense of Scalia. And now you offer this bizarre question. "Best and brightest" in the context of hired guns, earning 7 figures in a "top" firm is very different from "best and brightest" in the context of applying law in service of Justice and Liberty.

Fwiw, this use of superlatives, and a failure to address the reality that what is superlatively good in one context may superlatively bad in another, is one of the prime mistakes of thought coming out of the rw, largely in argument against social justice issues (a pattern in evidence on this thread.) It's that old "Right Makes Might" thinking of the Social Darwinists as articulated by folks like Posner and Coase: Anything that interferes with folks acquiring more capital must be bad, and only a fool (i.e., "irrational actor") would take less cash-on-the-barrel than they can demand, as if cash were the only utile to which a rational actor could orient her acts. It is a sick and twisted view which really needs to be highlighted as such whenever possible. There is so much more to life, to humankind, to America. Help keep it that way, eh?

# posted by

Robert Link : 2:08 PM

Humble Law Student:

Congradulations! I guess you'll have to change handles, though. :-)

# posted by

Essayist-Laywer : 2:11 PM

Robert Link: It's that old "Right Makes Might"...

Heh. Y'all will no doubt have realized I transposed my R and M.

# posted by

Robert Link : 2:27 PM

"Best and brightest" in the context of hired guns, earning 7 figures in a "top" firm is very different from "best and brightest" in the context of applying law in service of Justice and Liberty.

Given the amount of time federal judges nowadays are forced to devote to criminal cases, the "best" candidates might very well come from the US Attorneys and Public Defenders. The current judicial salary would be a raise for them.

A different balance of cases might justify a different standard for the Supremes. There, however, it's doubtful that judges are coming from the ranks of the top Wall Street firms. Just going off memory here, Douglas was head of the SEC, Black was a Senator, Jackson was either AG or SG, Brennan and Warren were governors, Rehnquist was in the AG's office, etc. Others (Ginsburg, Blackmun, Berger, Roberts, Alito et al.) were lower court judges.

It's hard to argue for salaries competitive with top NY firms if those firms don't actually provide the hiring pool. One could argue, of course, that the salary structure serves as a hidden bar to interest by such partners. I'm not persuaded of that, but in any case the appointment process involves political considerations which make their appointment unlikely anyway.

# posted by

Mark Field : 4:05 PM

Mark Field: It's hard to argue for salaries competitive with top NY firms if those firms don't actually provide the hiring pool.

And yet I think this is exactly what some of our rw friends on this thread are suggesting. To get there they have to treat the pool of candidates as "all lawyers," and they have to treat earning capacity as the only relevant sorting criterion. This is akin to assuming the best players will be great coaches...or vice versa. And none of it is relevant to Justice Scalia's assertion that one cannot raise a family on what a judge makes. Certainly his monthly nut is higher, but I'd be willing to bet there are families with nine kids all over the world feeding them all on much, much less. Scalia is conflating "raise a family" with "support me and mine in the privileged, elitist manner to which we've become accustomed".

# posted by

Robert Link : 5:07 PM

To get there they have to treat the pool of candidates as "all lawyers," and they have to treat earning capacity as the only relevant sorting criterion. This is akin to assuming the best players will be great coaches...or vice versa.

I agree that earning power is not the (or even a) relevant sorting criterion, especially for the Supreme Court. I might raise the salaries anyway, because I doubt they've kept pace with inflation; Scalia might have done better had he compared judicial salaries from previous years to those of today. I suspect he'd be happy with the result.

# posted by

Mark Field : 11:34 PM

Mark Field: Scalia might have done better had he compared judicial salaries from previous years to those of today.

Very even-handed of you, and an example worth emulating. I've already confessed a personal distaste for all things Scalia, based largely on his sins in the dissent to McCreary.

# posted by

Robert Link : 2:15 PM