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Courting CashAnthony Kennedy weighs in on the crisis in judicial pay.

By Dahlia LithwickPosted Wednesday, Feb. 14, 2007, at 6:32 PM ET

Supreme Court Justice Anthony KennedyI 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.

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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."

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.