Want less ideology on the federal bench? Pay judges more.

• Author: Forr, Thomas J.

INTRODUCTION I. THE CRISIS II. THE LITERATURE A. Baker's Initial Data on Pay and Ideology B. Criticism and Correction III. JUDICIAL CONFIRMATION DATA A. Confirmation Process for Circuit Courts B. The Methodology C. The Data D. Potential Objections 1. The Presidency Objection 2. The "Divided Government" Objection E. Why the Longer Confirmation Times? 1. Coincidence 2. Low Quality 3. Circuit Influence 4. Ideology F. Causation CONCLUSION INTRODUCTION

Since 1969 the real value of a federal judge's salary has declined. (1) Meanwhile, profits per partner at prominent law firms have skyrocketed. (2) Chief Justice John Roberts has highlighted this development, along with problems retaining and recruiting federal judges from the private sector, and concluded that Congress's failure to raise judicial pay has "reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal Judiciary." (3)

This Comment analyzes the crisis that Chief Justice Roberts has identified. In particular, this Comment focuses on the link between judicial pay and ideology. After marshalling data from the judicial confirmation process over the past thirty years, this Comment finds that low judicial pay has helped create a more ideologically polarized bench.

Part I explores Chief Justice Roberts's argument that, as a result of stagnant judicial compensation, the quality and independence of the judiciary are in jeopardy. (4) Part II analyzes the only empirical study to date on the link between pay and performance in the federal judiciary. That study, authored by Professor Scott Baker, concludes that the modern level of judicial pay has not, in any quantifiable sense, affected the quality of the judiciary. (5) However, the study contains evidence that low pay may be undermining the independence of the judiciary by attracting more ideologically driven judges in major markets. Judges from the top five legal markets (Top Five Markets)--New York, Los Angeles, Chicago, San Francisco, and Washington, D.C. (6)--tend to exhibit more partisan voting patterns and citation practices. (7) Thus, the study suggests that judges who, generally speaking, forgo the most income to join the bench may be more ideological than their peers. (8)

Part III presents new data and a model to support the view that the failure to raise judicial pay has, in major markets, created a more ideologically driven judiciary. This Comment focuses on the amount of time it takes a judicial nominee to be confirmed. Over the past thirty years, the Senate has taken significantly longer to confirm nominees from Top Five Markets than those from smaller markets. (9) In other words, the Senate takes longer to confirm the nominees who, on average, pass up the most staggering salaries to become judges. (10) This finding is statistically significant. (11) After controlling for other plausible explanations, this Comment concludes that the best explanation for the longer confirmation times is that, as a result of low judicial pay, nominees from major markets tend to be more ideological than their peers. (12)

One implication is clear: increasing judicial pay in major markets should diminish partisan voting on the bench. (13) To ensure that our judiciary remains fair-minded and independent, Congress should swiftly pass legislation providing robust cost-of-living adjustments for judges in large cities. (14) In addition, Congress should ensure that judicial pay keeps pace with inflation. (15) Finally, in view of the demonstrable effects of low judicial salaries, Congress should seriously consider Chief Justice Roberts's pleas on behalf of his colleagues for a judicial pay raise.

1. THE CRISIS

   Chief Justice Roberts regularly emphasizes the need for an increase in judicial pay. (16) However, he offered his most forceful and comprehensive argument in his 2006 Year-End Report on the Federal Judiciary. In this report, the Chief Justice focused on just one issue: Congress's perennial failure to raise judicial pay. (17) According to Chief Justice Roberts, this issue has developed into a "constitutional crisis" that "threatens to undermine the strength and independence of the federal Judiciary." (18)

   Chief Justice Roberts begins by pointing to the decline in federal judicial salaries. From 1969 to 2006, the average U.S. worker's wage, adjusted for inflation, rose 17.8%. (19) During that same period, inflation-adjusted federal judicial pay declined 23.9%--leaving a 41.7% gap. (20) Indeed, in 1969, a federal district judge earned 21% more than deans at top law schools and 43% more than senior professors at those schools. (21) Today, Chief Justice Roberts writes, federal district judges earn about half what such deans and professors are paid. (22)

   There is an even starker contrast between a judge's salary and pay at private law firms. Chief Justice Roberts writes, "Beginning lawyers fresh out of law school in some cities will earn more in their first year than the most experienced federal district judges before whom those lawyers hope to practice some day." (23) Indeed, in 2008, a federal district judge earned $169,300, while a federal circuit judge earned $179,500. (24) By contrast, a first-year associate at a top firm in one of the largest cities earned around $160,000. (25) With bonuses, many of these rookie lawyers earned more than the distinguished members of the bench. (26) Moreover, judicial pay pales in comparison to the compensation that partners at top firms receive. In 2008, the average profits per equity partner at the 100 highest-grossing American law firms (the "Am Law 100"), figures that are reported annually in The American Lawyer, stood at an astounding $1.26 million--vastly greater than the salary that federal judges earn. (27)

   Chief Justice Roberts argues that this drastic discrepancy in pay between the private and public sectors has created recruitment and retention problems for the federal judiciary. He points out that fewer judges are entering the federal judiciary from the private sector. (28) During the Eisenhower Administration, around sixty-five percent of federal judges came from private practice. (29) In modern times, less than forty percent come from the practicing bar. (30) Additionally, a greater number of judges are retiring from the bench early to return to private practice. (31) In the 1960s, only a handful of federal judges resigned or retired, (32) but from 1990 to 2005, ninety-two judges stepped down--fifty-nine of them to return to private practice. (33)

   Chief Justice Roberts contends that these developments, caused by inadequate judicial pay, undermine two hallmarks of the judiciary: "[W]ithout fair judicial compensation we cannot preserve the quality and independence of our Judiciary, which is the model for the world." (34) Chief Justice Roberts argues that the drastic decline in judicial compensation, as compared to the compensation available through other opportunities in the legal profession, will inevitably detract from the quality of candidates for the federal bench. (35) The judiciary, according to Chief Justice Roberts, will soon be restricted to "(1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase." (36) Either way, he maintains, the judiciary will not be a strong and distinguished group--the type of bulwark this nation has long relied upon to protect the rule of law. (37)

   Chief Justice Roberts then explains how inadequate compensation threatens the independence of the judiciary. He notes that low judicial pay undermines the viability of life tenure. (38) Without life tenure, Chief Justice Roberts contends, judges will not as easily be able to make the unpopular decisions that upholding the rule of law occasionally requires. (39) Chief Justice Roberts writes, "If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers' goal of a truly independent Judiciary will be placed in serious jeopardy." (40)

   This Comment focuses on Chief Justice Roberts's second concern: that low judicial pay undermines the independence of the judiciary. However, this Comment does not assess whether, as the Chief Justice predicts, judges will become compromised by an ambition to return to private practice. Rather, this Comment evaluates a different threat to the independence of the judiciary: whether low judicial pay attracts more ideologically driven judges. Indeed, a partner at a top firm in a major market must have some meaningful motivation to accept a drastic pay cut--perhaps as high as eighty or ninety percent--to take a seat on the federal bench. (41) Of course, a lawyer may be motivated to accept a nomination for a variety of reasons: prestige, better hours, more interesting work, and so on. (42) This Comment, however, explores the possibility that, as a result of low judicial pay, a nominee's ideology often supplies more motivation than it otherwise would.

2. THE LITERATURE

   In 2008, Professor Scott Baker published the only empirical analysis to date evaluating the link between the pay and the performance of

   the federal judiciary. (43) He analyzed whether the current level of pay has, in any quantifiable sense, detracted from the quality of the judiciary's performance. He found that the financial opportunity (44) that a nominee foregoes usually has no bearing on a judge's work ethic (45) or the quality of a judge's opinions. (46) As such, Baker concluded that the current level of pay has not detracted from the judiciary's quality in any measurable sense. (47) This Comment, however, questions whether the current level of pay has affected the level of partisanship on the federal bench. With respect to that connection, Baker's data tell a different story.

   1. Baker's Initial Data on Pay and Ideology

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