What Are Judges Worth? Part 2:
CJ Roberts' 2006 recycles economic claims from his 2005 report
3 Jan 2007 in Regulatory Economics
Yesterday we posted an extensive analysis of Supreme Court Chief Justice John Roberts' claim that federal judges are underpaid. This morning we discovered that he made the same claim in his 2005 year-end report, and used almost identical language.
We have little to add to yesterday's analysis. Similar independent analyses are offered by Matthew Franck writing on National Review Online, Carolyn Elefant at Law.com, Stephen Bainbridge, and Ilya Somin writing at the Volokh Conspiracy.
Thanks to The Razvan Blog, we learned that Chief Justice Roberts made much the same argument in his 2005 year-end report, and used much the same language. Compare:
| 2005 Year-end Report | 2006 Year-end Report |
|
"There will always be a substantial difference in pay between successful government and private sector lawyers. But if that difference remains too large, as it is today, the judiciary will over time cease to be made up of a diverse group of the Nation's very best lawyers. Instead, it will come to be staffed by a combination of the independently wealthy and those following a career path before becoming a judge different from the practicing bar at large. Such a development would dramatically alter the nature of the federal judiciary." |
"The dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge. Our judiciary will not properly serve its constitutional role if it is 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. "It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar." |
| "[J]udges do not have a natural constituency to argue on their behalf. They do not serve a particular group, and courts, by their very design, often have to render unpopular decisions. Judges must rely on the Congress and the President to increase their pay." |
"Judges, who have the obligation to make decisions without regard to public favor and who must frequently make unpopular decisions, have no constituency in Congress to voice their concerns. They must rely on fact, equity, and reason to speak on their behalf." |
| "A more direct threat to judicial independence is the failure to raise judges' pay. If judges' salaries are too low. judges effectively serve for a term dictated by their financial position rather than for life." |
"Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law–even when it is unpopular to do so– will be seriously eroded." |
CJ Roberts' 2005 year-end report has an entirely unrelated claim that also warrants careful economic scrutiny:
According to information compiled by the Administrative Office of the U. S. Courts, while the judiciary spends almost sixteen percent of its total budget on GSA rent -- twenty-two percent of its "salaries and expenses" appropriations -- only three percent of the Department of Justice budget goes toward GSA rent, and the Executive Branch as a whole spends less than two-tenths of one percent of its budget on GSA rent.
During fiscal year 2005, the judiciary paid $926 million to GSA in rent, even though GSA's actual cost for providing space to the judiciary was $426 million. The disparity between the judiciary's rent and that of other government agencies, and between the cost to GSA of providing space and the amount charged to the judiciary, is unfair. The federal judiciary cannot continue to serve as a profit center for GSA (p.3).
This argument is very similar in structure to the one Roberts provided to support his claim that federal judges are underpaid. First, his comparison to Executive branch agencies in general, and the Department of Justice in particular, is not obviously appropriate. All they have in common is that they are both part of government and employ lawyers. Executive branch agencies -- including the Department of Justice -- perform a much wider variety of services than do the the federal courts, and many of these services do not require much real estate. It also may be that the federal courts want (and get) the very best real estate for almost all their functions. A more apt comparison might be with prestigious law firms. What percentage of their salaries and expenses is consumed by rent? Are they ever charged more than market prices?
Second, Roberts' says GSA charges rent equal to 2.2 times its cost and that this is an unfair business practice. But Roberts does not claim that GSA's rental rates exceed market value. Rather, he implies that it's inappropriate for GSA to charge market prices. For a reputedly conservative jurist, it is surprising to read that he appears to believe in the antiquated notion that prices should be set by cost and not by value.
