The public debate over the need to raise judicial salaries has been one-sided. Sentiment appears to be that judges are underpaid. But neither theory nor evidence provides much support for this view. The primary argument being made in favor of a pay increase is that it will raise the quality of judging. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to question. An empirical study of the high court judges of the fifty states provides little evidence that raising salaries would improve judicial performance. 1. the sAlAry debAte Chief Justice John Roberts says that the pay increases that his colleagues have received over the past two decades are so inadequate as to create a “constitutional crisis” (Year-End Report 2007). Justice Kennedy says that “[because of inadequate judicial pay] the nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the 1 Faculty at NYU, Duke, and Chicago law schools respectively. Thanks to Jonathan Baker, Scott Baker, Prea Gulati, Kimberly Krawiec, Jayanth Krishnan, David Levi, Raleigh Levine, Richard McAdams, Ann McGinley, Richard Posner, Jeff Rachlinski, Greg Shafer, David Snyder, Jeff Stempel, Joshua Teitelbaum, Un Kyung Park, and participants at seminars and workshops at the University of Chicago, Loyola University of Chicago, Cornell University, Duke University, Ohio State University, the University of Nevada-Las Vegas, the University of North Carolina, American University, and the William Mitchell Law School for comments. Thanks also to the judges who gave us good-natured albeit highly critical feedback. For research assistance, thanks to Jai Damle, John Niles, Craig Porges, Nathan Richardson, Lauren Tribble, Reed Watson, Jennifer Wimsatt, and Matthew Wolfe. Finally, thanks to Mark Ramseyer and an anonymous referee for their review and comments. Winter 2009: Volume 1, Number 1 ~ Journal of Legal Analysis ~ 47 1 48 ~ Choi, Gulati & Posner: Are Judges Overpaid? world” (Hearing 2007a). Justice Alito warns that “eroding judicial salaries will lead, sooner or later, to less capable judges and ultimately to inferior adjudication” (Hearing 2007b). Justice Breyer “believe[s] that something has seriously gone wrong with the judicial compensation system” (Hearing 2007a). Lower court judges, lawyers, public intellectuals, and law professors agree (Parker 2007). One hundred and thirty law school deans signed a letter urging judicial pay increases (Letter 2007). The American College of Trial Lawyers endorses a salary increase (American College of Trial Lawyers 2007). So does Paul Volker, the former Federal Reserve Board Chairman (Volker 2007). The complaints are not new—Chief Justice Rehnquist made them as did his predecessor, Chief Justice Burger (Frank 2003; Holt 2006). And they are not limited to federal judges. State judges and their supporters have been complaining equally loudly about inadequate pay (Schotland 2007; Sherwin 2007; Wise 2008). Judith Kaye, the Chief Judge of the highest court in New York, went so far as to file suit against the legislature and the governor, asserting that the legislature’s and governor’s refusal to provide adequate salary increases for judges was undermining judicial independence and effectiveness (Stashenko & Wise 2008). Are these complaints plausible? How does one tell whether someone—a judge, or someone else—is underpaid? The judges cite data showing that they are paid less than (some) foreign judges and (some) practicing lawyers in the United States and some law professors, but why are these people the relevant comparison? What if these people are overpaid? To evaluate the argument that judges are underpaid, one needs a theory of wage compensation and empirical evidence. However, so far neither theory nor evidence has played a large role in the public debates. The purpose of this article is to generate a debate over the proper theoretical and empirical foundations for determining the optimal level of judicial compensation. Setting out a simple theoretical model of judicial behavior, we demonstrate that the case for increasing the salaries of federal judges is weaker than recognized. However, the case may be stronger for state judges subject to a meaningful risk of job loss. We make several points. First, judicial pay cannot be evaluated in isolation. Pay is but one aspect of judicial compensation—which includes status, tenure, pensions, and the satisfaction derived from doing justice, affecting policy, and wielding power—and working conditions in general, which 2
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