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Like most lawyers, I initially found myself nodding in agreement when I read that Chief Justice William Rehnquist had again included a request for increased judicial salaries in his annual Report on the Federal Judiciary. The chief pulled out the stops this year, referring to a “pay crisis” in which the inadequacy of judicial compensation is “the single greatest problem facing the judicial branch.”And who would be inclined to argue? The pay for federal district judges is $150,000 (rising to about $184,000 for U.S. Supreme Court justices), placing their compensation well below the impressive salary levels at large law firms. As many have noted before, something seems seriously out of whack when new associates can earn more money than the judges for whom they have recently clerked. If there is a single sentiment that unites the bar, it is the truism that federal judges are grievously underpaid. And so it came as a great surprise when I read Justice Rehnquist’s reports for the past three years, and discovered that the case for a pay raise turns out to be remarkably thin (with one ironic exception; more on that later). The economic arguments were particularly unconvincing, relying more on dire suppositions than on hard figures or facts. For example, Rehnquist opines that “low salaries might force judges to return to the private sector rather than stay on the bench.” While this may at first seem painfully obvious, the reality is that very few federal judges ever take that step. Quoting the Administrative Office of the United States Courts, Rehnquist ominously noted that “more than 70 Article III judges left the bench between 1990 and May 2002.” That sounds serious until you do the math. It works out to only about six per year — under 1 percent of sitting judges — and that includes those who have retired to the golf course, not just those who have returned to active practice. Compared to virtually any other field of endeavor, a 1 percent annual resignation rate is admirably low. Attrition is many, many times higher at law firms, notwithstanding the stratospheric pay scale. Obviously, then, the rewards of public service continue to outweigh the lure of law practice for the overwhelming majority of federal judges. Besides, as every manager understands, a reasonable amount of turnover is good for an institution, encouraging fresh ideas and innovation. And frankly, there are some federal judges who ought to resign, either because they have become jaded and disaffected, or because they were never suited to the job in the first place. But even if resignations are not a serious problem, what about the effect on future appointments? Rehnquist worries that “many of the very best lawyers” will not be “willing to be considered for a position on the federal bench.” This argument might have some punch if there had ever been a shortage of applicants for federal judgeships. The fact, however, is that lawyers line up around the block for every vacancy, surely allowing selection from among “the very best.” Of course, there is no guarantee this will continue. But it was 1976 when Chief Justice Warren Burger first announced that a pay crisis threatened a “brain drain” from the federal judiciary; that bleak prognosis — repeated by Rehnquist at regular intervals, including a warning in 1988 that “approximately 30 percent” of federal judges “planned to resign before retirement” — has yet to come true. Despite more than 25 years of grim predictions, it is apparent that market forces have worked pretty well for the federal judiciary. In exchange for accepting their relatively modest salaries, federal judges receive the benefits of life tenure, retirement at full pay, and freedom from the endless pressures of hourly billing, business development, client demands, liability exposure and intrafirm intrigues — not to mention the prestige of high office and the satisfaction of dispensing justice. Meanwhile, practicing lawyers report extraordinary levels of job dissatisfaction, sometimes bordering on outright despair. Those high salaries come at an equally high cost, exacting their toll in time and stress. It is hardly surprising, therefore, that lawyers are abandoning private practice at a far greater rate than federal judges are leaving the bench. As a purely empirical matter, there is no pressing need to increase judicial salaries in order to attract or retain first-rate judges. Before I provoke total outrage, let me add that there is a powerful equitable argument in favor of a decent pay hike for judges, although it has been curiously overlooked by Rehnquist. The best reason for raising judges’ pay is comparable worth — the principle that compensation ought to bear some relationship to a job’s value, not solely to the job market. To put it bluntly, federal judges are worth much more, by any measure of social utility, than most law firm partners, but they are paid far less. That disparity must surely be disheartening, as judges annually watch their incomes shrink in comparison to even mediocre specialists in, say, mergers and acquisitions. Even worse, judges virtually have to beg Congress for small cost-of-living increases, while elite practitioners have routinely raised their billing rates to new extremes. Judging is not a commodity, and it is both unfair and demoralizing to treat it like one. Given the ascendency of free market fundamentalism, in both legislatures and courts, it is understandable that Rehnquist annually attempts to dress up an essentially equitable case with appeals to economic efficiency. But those who live by the market die by the market, and the contrived economic rationalizations fall apart under close examination. As in any labor negotiation, such transparent brinksmanship (“More money or we’ll quit!”) merely encourages bluff-calling. No wonder Congress keeps stonewalling judges’ salary requests. Last December, President George Bush urged Congress to “specifically authorize a pay increase for federal judges.” We have yet to see whether that was a firm commitment or an empty gesture. But if I were a conservative congressman, I’m afraid I would have to vote against a raise, following the general free market labor policy of extracting maximum work for a minimum wage. As a liberal, however, I believe in pay equity. So I would enthusiastically support a fairly generous salary hike for judges — hoping that the lesson might stick. Steven Lubet is a professor of law at Northwestern University. His most recent book is “Nothing but the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.” E-mail: [email protected].

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