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BUILDING HONEST
SCHOLARSHIP:
EVIDENCE-BASED REFUTATIONS
TO INCREASING FEDERAL JUDICIAL PAY
click here for
the claims of
the judicial & legal establishment, as reflected by the US Courts' website
CJA's May 13, 2008 memo to Congressional Leaders
--
RE: Request
for Congressional Hearings on the Breyer Committee's Report on the
Implementation of the Judicial
Conduct and Disability Act of 1980; &, Pending Same, Deferment of Congressional Action on Senate
and House Bills, S. 1638 and H.R. 3753, to Raise Judicial Salaries 29%"
1. PROFESSOR SCOTT BAKER:
"A
raise that's hard to justify",
January 4, 2008, Op-Ed, Los Angeles Times
"Before Congress gives some of the highest-paid
members of the federal government a raise, however, it should study and weigh
the evidence. And currently, there is virtually no evidence that higher
pay means better judges or that lower pay means lousy judges. In fact, the
available evidence shows no correlations between judicial performance and
judicial pay."
"Should
We Pay Federal Circuit Judges More?",
Boston University Law Review, 2008
"Conclusion:
Chief Justice Roberts, his brethren, and
many prominent members of the legal community have issued statements about the
corrosive effect of low judicial salaries. The heated rhetoric is itself
telling: low judicial salaries are creating a “constitutional crisis”; [fn]
because of low salaries “the nation is in danger of having a judiciary that is
no longer considered one of the leading judiciaries of the world”;[fn] and
“eroding federal judicial salaries will lead, sooner or later, to less capable
judges and ultimately to inferior adjudication.”[fn]
This Article is the first to test whether
judicial salaries really do impact judicial performance. Given the available
data, the effect of low judicial pay is non-existent, at least when judicial pay
is measured against the next best financial opportunity for most circuit judges.
Low pay does not impact voting patterns, citation practices, the speed of
controversial case disposition, or opinion quality. Low pay does lead to
slightly fewer dissents. While statistically significant, the magnitude of this
effect is slight.
Low judicial salaries might have a
corrosive character. The source of the corrosion, however, rests outside
judicial performance. Chief Justice Roberts is probably half right: low judicial
salaries erect a barrier to entry onto the bench for some candidates. But this
barrier is inconsequential if those candidates who are willing to take
judgeships are indistinguishable from those candidates driven from the applicant
pool by low judicial salaries. That is the story these data support."
* * *
"...my judicial performance measures don’t perfectly capture judicial
quality.[fn] But if not these measures, what measures exist to assess the
quality of federal circuit court judges? The short answer – none – is
unsatisfying. The “I-know-a-good-federal-circuit-judge-when-I-see one” angle is
hard to test. The article employs every metric I could think of, including most
of the metrics used by scholars studying the circuit courts.[fn] At the
start of the project, my sense was that Congress would care about these measures
when considering a judicial pay raise. Suppose that the study had found
statistically significant and economically meaningful correlations between
financial sacrifice and voting patterns in controversial cases, dissent rates,
the time it takes to render decisions, citation practices in opinion writing,
and the number of outside circuit citations opinions tend to garner. In that
case, I suspect Chief Justice John Roberts himself would have pointed to the
study to “prove” to Congress the need for higher salaries."
2.
CONGRESSIONAL RESEARCH REPORT FOR CONGRESS:
"Judicial
Salary: Current Issues and Options for Congress", updated
January 10, 2008,
by Kevin M. Scott, Analyst on the Federal Judiciary, Government & Finance
Division
"Summary:
Several federal judges,
including the Chief Justice of the United States, have expressed concern over
the level of judicial salary. Chief Justice Roberts has called the current
levels of judicial salary a “constitutional crisis” that threatens the
independence of the federal courts. The most common arguments for raising
judicial salary claim that low judicial salaries (1) limit the ability of the
federal judiciary to draw on a diverse pool of candidates for positions on the
federal bench; (2) force federal judges concerned about their financial futures
to resign from the bench before they become eligible for retirement; and (3)
drive other federal judges, upon becoming eligible for retirement, to retire
completely (to earn extra income outside the judiciary), rather than remain to
assist the courts as judges on 'senior status.' Opponents of raising
judicial salary generally question whether variations in judicial salary affect
recruitment and retention of federal judges.
Examination of the available
evidence on the effect of judicial salary on judicial recruitment and retention
suggests (1) trends away from appointing judges directly from private practice
and toward appointing federal judges who are already in the judiciary (as state
judges or federal bankruptcy or magistrate judges) date to before the most
recent decline in judicial salaries, (2) federal judges are not resigning from
the federal bench at rates much higher than historical averages, and (3) the
percentage of federal judges who chose retirement in lieu of senior status has
also not risen markedly in the last several years. From an examination of data
on judicial departures, we are unable to identify a conclusive relationship
between judicial salary and federal judges’ decisions to resign or retire."
3.
See, also,
Judge Richard Posner's blog: March 18, 2007: Judicial
Salaries
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