Yesterday's edition of the New York Times had an interesting article written by Adam Liptak discussing whether federal judges should receive a pay raise, an issue on which I have previously commented here. In the article, which is available here on the New York Times website, Liptak discusses two recent studies performed by Scott Baker and Mitu Gulati, Eric Posner, and Steven Choi, which both suggest that judicial quality would not improve with higher judicial pay. When I spoke to Adam Liptak last week to provide background for the story, my reaction to these studies was very similar to that of Frank Cross, who suggested that the "new studies went off the rails" because "'we don't have a good measure of judicial quality.'" In my opinion, empirical tools are relatively ineffective in studying highly subjective questions like the quality of judicial work. In part, the problem is that it is difficult to find two constitutional law professors who would agree on what constitutes quality work. I have had disagreements with colleagues, for instance, who argue that lengthy, scholarly opinions are of higher quality, while my view is that brevity and clarity should be the goals of judicial opinion-writing. Yet variables such as the number and length of published opinions and even how quickly the opinions are produced are often variables in these types of studies.
As I have stated before, it is not that I oppose a judicial pay raise (actually I don't), it is just that I think that the Administrative Office and the Chief Justice have failed to make the case to this point for anything greater than regular, annual cost-of-living increases. As Judge Posner pointed out in his book How Judges Think (which is excerpted in the Times article), only 12 federal judges resigned during the period from 2000-2005 out of a total of 1,200 active and senior judges working during that period. That is only a 1% resignation rate, which I suspect is quite a bit lower than in the vast majority of other comparable professions. And similar to the point I raised in my prior post about the potentially misleading data advanced by the Administrative Office, which appears to use extraordinarily high comparable salary data for senior law school professors and omits any discussion of the judiciary's very generous pension benefits, Posner points out that it is no accident that the Chief Justice uses 1969 as the benchmark for judicial pay given that federal judges received a 30% pay raise that year. In Posner's opinion, using 1969 as the benchmark is "misleading."
My point in this series of posts is not to minimize the important contribution of federal judges or to take a firm position on the merits of the judicial pay debate. (Indeed, I have written in the past that we should consider giving even more generous pension benefits to federal judges.) Instead, my hope is that the Administrative Office, the Chief Justice, and academics can produce a greater volume of data that more accurately represents the case for (or against) a judicial pay raise. It is only then that we can have a serious conversation about whether, and how much of, a pay raise is warranted.
Note: Cross-posted at Balkinization