Roughing It

Mark Graber

Life is apparently rougher on federal judges than we thought. According to today's Washington Post, Justice Scalia recently declared,"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." In his view, the federal judiciary will increasingly fail to attract the best qualified lawyers if judges' pay doesn't improve. Federal judges earned salaries of $165,200 in 2006. Scalia said lawyers can easily earn significantly more by staying in the private sector.

Granted, real estate prices in the more desirable parts of New York City are insane. Still, if as is normally the case, judges buy houses worth two-and-a-half or three times their annual salary, judges with non-working spouses could afford the house I grew up in on Long Island (maybe a little more or less, depending on recent price fluctuations). With a working spouse or savings from private practice, a good deal more. Of course, as did my father and a great many of my neighbors, the judge without a working spouse would have to take the train into work on a daily basis and send their children to Mepham High School (average quality for a Long Island high school). Still, a great many persons on Long Island work in the city and raise families on $165,000 a year. Many do so on much less.

What one cannot do easily on $165,000 in New York is fence oneself off from average citizens by living in a gated community, sending one's children to private schools, and shopping at top of the line stores. At $165,000 a year on Long Island, you shop at the A&P, vacation at one of the lesser resorts in the Catskills, and, very special occasions aside, eat at TGIFriday's or get take out Chinese. I suspect a great many framers, particularly from New England, would not have minded such arrangments, arrangements that require governing officials to come into contact with average citizens on a regular basis. Many framers took substantial pay cuts to go into public service (which was considered an honor) and, southern slaveholders aside, most did not want to be ruled by a governing class that cut themselves off from the travails of middling America.

Of course, if we do a narrow legalistic reading of the constitution, Congress has the legal authority to raise judicial salaries to any amount. A judicial pay raise that enabled justices to avoid living where most Americans live, eating where most Americans eat, and sending their children to the schools most Ameican children attend, however, seems inconsistent with more fundamental norms underlying the constitutional regime (though perhaps not those of the slaveholding framers). Another indication of how Justice Scalia's values are either deeply at odds with the principles underlying our regime or reflect what was worst in some framers.
Posted 8:05 AM by Mark Graber [link]