A year ago we posted notes here and here on Chief Justice John Roberts’ state of the judiciary report for 2007, in which he bemoaned federal judges’ low salaries and warned of a “constitutional crisis” if salaries were not increased. We were not competent to offer informed insight on CJ Roberts’ legal claim, but we were able to quickly dispense with his economic arguments. Taking his own data at face value, we were able to show that his argument lacked any merit.
The Chief Justice is back with his report for 2008, and he recycles the same complaints about low judicial salaries. What’s different this year is that the Congressional Research Service has analyzed the data more carefully than CJ Roberts did, and found that Roberts’ conclusions were not empirically supported. In this year’s report, Roberts’ ignores the CRS study, dropped the economic privation argument he made last year, and adopted the all-purpose defense used by weak claimants: he divided the cost of his proposal by the largest imaginable denominator.
CJ Roberts’ previous argument can be summarized as follows. First, judges ought to be compensated at the same level as partners in major law firms. Deans of prestigious law schools and senior law professors make a more palatable comparison, but it’s one of convenience rather than conviction. Second, because judges’ salaries are well below these levels, they are resigning in droves for private practice (but tellingly, not to become professors or deans of prestigious law schools). If judicial pay is not increased, he said, judges will consist of “persons so wealthy that they can afford to be indifferent to the level of judicial compensation” or “people for whom the judicial salary represents a pay increase,” and on average this will mean a significant decline in the quality of judges.
In his 2008 report (PDF), Roberts abandons this argument. An excellent reason for doing so can be found in the CRS study (PDF), which showed no rising trend in the rate of resignations among federal district court judges (Figure 2). Similarly interesting is CRS’ analysis of long-term trends in inflation-adjusted judicial salaries (Figure 4), which shows very little change in the past 10 years. These data are completely inconsistent with CJ Roberts’ claims and entirely consistent with the alternative hypothesis we raised in our post: the “problem” is not that judicial salaries have lagged inflation, it’s that they have lagged behind the salaries of those whom federal judges consider to be their social peers — senior professors and law school deans, to be sure, but more to the real point, partners at major law firms.
In his 2007 report, Roberts probably used professors and deans as his benchmark because his complaint would have been summarily dismissed if he had recommended that judicial salaries match median law partner salaries. (He complained that some newly hired attorneys earned salaries greater than the judges before whom they practiced — clearly a comment about social class and status, and not economic value.) But in our first post we showed that there was no obvious reason why deans and law professors provided an appropriate benchmark. These are very different jobs. Judges decide cases; law school deans hire faculty and schmooze donors; and senior law professors teach, pontificate and preen. We also looked at CJ Roberts’ data purportedly showing that federal judges were resigning in droves, but noticed that resignations actually were rare. That’s incompatible with the thesis of economic privation; as we showed last January, “[w]hen Roberts’ limited analytical evidence is stripped away, all he is left with is the assertion that judges deserve to be paid more because anything less is unseemly and unfair” — a claim he recycles in 2008:
[T]he denial of annual increases over the years has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located (emphasis in original).
CJ Roberts compliments Congress for considering legislation that responds to his compliant but ignores the empirical evidence CRS produced to refute it. Roberts now says the cost of the legislation is “less than .004% of the annual federal budget.” This is surely the most telling evidence that Roberts has abandoned any coherent economic argument. Calculating a meaningless ratio by reaching for the largest possible irrelevant denominator is the last refuge of an advocate who knows his case has no merit.