Thursday, January 01, 2009
An Overlooked Aspect of the Judicial Pay Raise Debate
Chief Justice Roberts made the following (familiar) plea in his year-end report on the Federal Judiciary:
I appreciate this.
The issue of judicial pay is worth concern, but it also should be noted that federal judges have certain perks (including tenure during good behavior, which basically means not breaking the law too egregiously) that should be factored in, even as compared to lawyers.
I'm not sure if they always are.
On a previous thread I pointed out that by my calculations UK Judges were paid more than US Judges at equivalent levels of responsibility. That is disturbing because I suspect the more senior partners in the leading US law firms may earn somewhat more than our top silks and partners.
Over here a senior silk (QC) or partner in a major law firm will still take a considerable drop in earnings on accepting a judicial appointment. There are other compensations: a somewhat less stressful life, a first class and inflation-proof pension, the honour of knighthood for High Court judges, the fact that appellate judges are made Privy Councillors, the immense prestige which comes from being "one of Her Majesty's Judges", the chance to have one's name in the law books and to shape the law for future generations.
But surely it must be wholly undersirable for judicial salaries to get too far out of line with the earnings of the profession. If the partners in good law firms are pulling in a certain level of earnings then the remuneration package of 1st tier judges should be comparable. Should there be too great a disparity the non-monetary compensations will not serve to redress the financial disincentive to migrate to the bench and one ends up having first class minds preparing cases to be judged by second class minds.
In the UK, the earnings of the major law firms in the City of London and the cream of the bar are significantly enhanced because the UK is a "jurisdiction of choice" - a very high proportion of the work of our Admiralty, Commercial, Construction & Technology and Patents courts comes from disputes between parties who have no connection with England other than they they have chosen to contract on English law terms. That is good for our balance of payments - and it is the existence of the specialist Courts with expert judges (and, I would add, no juries in most civil claims) that enables the jurisdiction of choice work to continue to flow to the capital from around the world.
But if the judges were second-class, or corruptible, or the if the law's delays were to became unacceptable, the world business community would take its custom elsewhere.
I was concerned to see that the comparators being used for US judicial salaries were those of academics rather than of legal professionals taking responsibility for major litigation. How do professorial stipends compare with the earnings of partners in the top 500 law firms?
Either way, on other threads I suggested that the time may be ripe for systemic reforms of the justic system to be considered. The remuneration package and the mechanism by which it is indexed is obviously part of this: the judiciary are not immune from the principle that if one pays peanuts one gets monkeys.
With all due respect, I don't buy this argument at all... because it's the same argument that is made regarding military salaries (although the purported "entitlement" is a sliding 50-75% of base pay after 20-30 years). I realize full well that this looks like mere "deferred compensation" or a golden parachute; it's not. It is, instead, a budget-balancing technique that is used to shove personnel costs off onto future years in the hope that the personnel in question will somehow lose eligibility for those benefits. Take a close look at the way Congress has managed the last three sets of "major" military pay raises (particularly those affecting flag officers), for instance, and compare the rhetoric to what's going on here.
Mr Petit: with every respect, there is a special difficulty with military comparables: what should be the enhancement for having been willing to put your life on the line. Arguably "0" at any rank above Captain.
The average colonel is seen as having little utility in civilian life and the general perhaps only as a lobbyist. In fact, those who are engineers or logistics experts have skills a civilian employer can put to very good use, but what special skills for civilian life do the non-specialists have?
I happen to think that my military service taught me a great deal - but the things I learned do not count for that much in civilian life.
C.E. Petit: this looks like mere "deferred compensation" or a golden parachute; it's not. It is, instead, a budget-balancing technique that is used to shove personnel costs off onto future years ...
That depends on whether the benefits are pre-funded by putting money away as they are earned, or paid for only at the time they are due and payable. I don't know whether this is the case for either judges or military officers.
We are not even getting our money's worth now. Here are two examples of lousy federal judges:
District-court judge "Jackass" Jones:
(1) -- showed extreme prejudice against Intelligent Design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Kitzmiller v Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions.
(2) -- The ID-as-science section of the Dover opinion was copied nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.
(3) -- has been criss-crossing the country lecturing that critics of his Dover decision have no respect for judicial independence.
District-court judge TJ "Mad" Hatter:
-- has a bad reputation for issuing decisions without opinions.
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