Anthony Kennedy weighs in on the crisis in judicial pay.

Anthony Kennedy weighs in on the crisis in judicial pay.

Anthony Kennedy weighs in on the crisis in judicial pay.

The law, lawyers, and the court.
Feb. 14 2007 6:32 PM

Courting Cash

Anthony Kennedy weighs in on the crisis in judicial pay.

Justice Anthony Kennedy. Click image to expand.
Supreme Court Justice Anthony Kennedy

I want federal judges to make more than the $160,000 they currently do as much as Justice Anthony Kennedy does, but his scenery-stealing oratory today about how depressed judges are by their relatively low pay is not the way to convince others of our shared stand. This, in the wake of Chief Justice John Roberts' recent comments on the same subject, confirms that the court is either totally tone-deaf when it comes to talking to the public or that they don't really want to be paid more after all.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Roberts launched all the crisis talk on New Year's Eve, when he transformed the court's traditionally bone-dry year-end report into a referendum on whether judges need more money. Judicial compensation—and not congressional attempts at court-stripping or media assaults on judicial independence—is, he declared, the most urgent issue facing the courts. And, in a strange word choice that had to be deliberate from a man as meticulous as Roberts, he described the magnitude of that problem as a "constitutional crisis."

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As I pointed out at the time, that word choice sent court watchers of just about every political stripe into orbit. Scholars and journalists who cannot agree on anything, from methods of constitutional interpretation to the proper role of the court in wartime, all found Roberts' rhetoric over-the-top and thought his weird sense of judicial entitlement was maddening. This is not a complicated idea: Federal judges are owed a pay raise. So why are the justices bungling the "ask" so badly?

When Justice Anthony Kennedy appeared before the Senate Judiciary Committee this morning, ostensibly to testify on the matter of "Judicial Security and Independence," he opened by again suggesting that with respect to the problems of "Separation of Powers" and "Checks and Balances," the real crisis is low judicial pay. While his language wasn't quite as overheated as Roberts', he described judicial salaries as "a threat to the judiciary as an institution [that] has become so serious and debilitating that urgent relief is necessary," said that "in more than three decades as a judge, I have not seen my colleagues in the judiciary so dispirited as at the present time," and that the "nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the world."

Federal district court judges make $165,200 annually; appeals court judges earn $175,100; and Supreme Court associate justices earn $203,000, while the chief justice earns $212,100. That's a lot more than most Americans make, but a lot less than most of these folks could command in private practice. Tough sell.

Kennedy tried to be more careful than Roberts—whose references to the Harvard law faculty and elite law firms would have annoyed anyone but the folks at Harvard law and elite firms. Kennedy detailed the ways in which judicial pay has declined as the judicial workload increased—at least in the lower courts. He explained that while "judges do not expect to become wealthy when they are appointed to the federal bench," they should be compensated with at least an eye toward the wages of the professional and academic community. He said that even though law firm wages may be outrageously high, "[s]omething is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before." He described the numbers of federal judges who have fled the bench for higher-paying jobs and the fact that some law school professors, not just deans, now earn more than most federal judges.

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So what's wrong with Kennedy's approach here? He conflates judicial salaries with attacks on the judiciary, instead of understanding that the real attack on the judiciary is a growing public mistrust: Justice Sunday broadcasts calling for limiting judicial power are aired nationwide. Politicians call for the impeachment of jurists who cite foreign law. Judges demand more police security as the threats against them mount. The judges' problem isn't their salaries. It's that people don't much like them.

Roberts and Kennedy don't understand that the last thing Americans want to hear, as they worry about out-of-control ideological judges, is that those out-of-control ideological judges want to be paid more than the six-figure salaries they already command. Kennedy and Roberts wrongly represent low judicial pay as an attack on the judiciary, whereas most Americans are so anxious about judges that they could not possibly be sympathetic to claims of low judicial pay. Right or wrong, Americans see their judges as public servants and want to compensate them that way.

The media response will be swift and predictable: The justices want to be paid more than 99 percent of the American public, rather than just more than 95 percent of them, notes a Texas paper. A Pennsylvania blogger observes, "Nobody runs for president of the United States because of the salary. The same goes for the Senate, the House or the bench. Those positions provide intangible rewards that cannot be measured in dollars." Even the Associated Press points out that Kennedy said (ulp), "$160,000 sounds like a lot of money to the average American, and it is. But it is insufficient to attract the finest members of the practicing bar to the bench." Who vets these speeches? Doesn't anyone on the staff of the court care that in the act of requesting a well-deserved raise, the justices alienate the very citizens and senators to whom they are supposed to be appealing?

Here's a little unasked-for advice to any other members of the Supreme Court lobbying for a pay raise: If you're going to lobby the American people on the issue of judicial pay, do NOT keep committing the following sins:

  1. Stop trying to conflate low judicial pay with a "constitutional crisis" or an "attack on judicial independence." It's neither. It's low pay and it's got very little if anything to do with the continued well-being of our noble system of checks and balances. Such rhetoric puts your listeners on the defensive. It also damages your credibility right out of the gate.
  2. Stop trying to suggest that the system is hemorrhaging great jurists like a fallen soldier on M*A*S*H. If the best jurists are really leaving the bench at unprecedented rates, show us the statistics. If a handful of them are leaving for more money, it's not a crisis. It's a free market at work. For a justice to repeat that the departure of a few dozen judges for greener pastures represents a state of affairs so dire that we are in "danger of having a judiciary that is no longer considered one of the leading judiciaries of the world" is an insult. It's an insult to the many, many judges who have remained on the bench, and to the highly qualified ones appointed to replace them.
  3. Stop implying that your pay should be tied to the sky-high wages paid by top law firms. Kennedy's insistence that America needs a "judiciary with substantial experience and demonstrated excellence" implies that only lawyers at top New York firms might exhibit such excellence. It insults all of the poorly compensated but experienced and excellent lawyers you want on your side in this fight.
  4. Related to the previous point, if you don't want your pay tethered to Congressional pay, explain why the comparison fails, clearly and directly.
  5. Kennedy made a nice little point today that has gone largely unreported thus far: Of the nine Article III judges who resigned in 2005, "four of those nine judges joined JAMS, a California-based arbitration/mediation service, where they have the potential to earn the equivalent of a district judge's salary in a matter of months." As Kennedy noted, "It would be troubling if the best judges were available only to those who could afford private arbitration." Ahhhh. Say that again and again.

If the justices are going to sell the country on the idea of pay raises, they won't get far by looking like greedy elitists who are worried about failing to attract other greedy elitists. That might not be fair. But it's politics. Right now, many if not most Americans are of the view that the judges in this country are overpaid and lacking oversight. They are wondering about judicial term limits; not about ways to keep a jurist on the bench for 40 more years. If the justices want to persuade those Americans and their representatives in Congress, they need a better sales pitch than: "Pay us more. We're better and smarter than you."