20 June 2012

Does Judicial Pay Matter?

How much should judges be paid? We first survey the considerable history of the debate and identify the implicit causal claims made about the effect of judicial pay. We find that claims about the effect of pay on the composition and quality of the judiciary have remained remarkably similar over the past two hundred years. In contrast, claims about the effect of pay on judicial independence have changed as the meaning of judicial independence itself has shifted.

We take advantage of the large variation in real salaries and opportunity costs for state appellate court judges across states from 1977 to 2007 to empirically test these claims. We find that judicial salaries have a small but significant effect on the likelihood of exit and thus the length of judicial tenure, and a small effect on the background of judges that join the appellate bench.

A more limited analysis of California trial court judges finds far more sensitivity to pay, however, suggesting that trial and appellate court judges may behave differently.

From here (a recent Stanford law review article by Anderson and Helland).

Of course, the question is complicated and multi-faceted.  A particularly important factor which interacts with judicial pay is the nature of the judicial appointment process, which prior studies have shown to have a material impact on the nature of the people who are appointed.  This varies widely from state to state and not infrequently between different courts in the same state.

The study also doesn't tell us much about the issue everyone wants to know about: does judicial pay influence the substance of the judicial rulings that judges make?  The influence on the "background of judges that join the appellate bench" in this study is the area where one might presume that such an influence exists.  States that pay less are less likely to come from "Top 10" law schools or to have been judicial clerks after they graduated from law school.  They are somewhat less likely to be men, although the impact of appellate judicial pay on the racial makeup of the judiciary is statistically insignficant.

One could imagine the small impact that pay has on early exit from the bench having a meaningful impact on rulings, but in practice, this doesn't seem likely at the appellate level at least, where courts are most often thought of as "making law" in a manner that persists beyond an individual case, rather than just applying the law.

Do Judges Rule With A Next Job In Mind?

Does the impact of pay on the likelihood that a judge will leave the bench before retirement age have any effect on judicial rulings?

In theory, the lure of lucrative post-judicial private practice positions could influence how a judge makes decisions on the merits of cases before leaving the bench, but I have never heard so much as an intimation or whispher from someone with personal knowledge of a judge's motivations in cases where a judge ultimately did leave the bench that this actually happens in any meaningful share of cases where a judge leaves or has seriously contemplated leaving the bench to practice law or a law related endeavor. 

On average, only 2.66% of appellate judges retire before age sixty-five, so any effect is necessarily slight.  Typically, appellate judging is already a second or third career for an attorney, followed in the vast majority of cases by retirement or death.

Conventional wisdom is that judges leave their posts when they have a choice to remain because they find that they don't like their jobs as much as the alternative, don't feel like they can't make enough of a difference doing what they do in good faith, or need a larger income than they receive to support the lifestyle that they would like to maintain.

Conventional wisdom is that judicial experience looks good on the resume of anyone seeking a position as a litigation partner in a law firm or high public office of any kind, elected or appointed.  But, generally one assumes that a judge is who he or she is, and will seek a compatible position, rather than making insincere rulings that are tailored to secure a next job.

There is powerful evidence from studies of the tenure patterns in the federal courts that the terms of defined benefit pension plans for judges do have a powerful influence on when judges choose to either retire and take "senior status."  Judges tend to hang on a few years longer than they otherwise might have to get a full pension, and tend to heed the economic incentive to retire once they do qualify for one.

Judicial Pay As A Political Tactic For Legislators

One can imagine legislators refusing to increase judicial pay and allowing judges to fully benefit from defined benefit plans after a shorter number of years because they don't like the rulings of the incumbent judiciary and want to encourage the creation of judicial vacancies that their allies can fill.  But, this tactic generally only makes sense when there has been a fairly recent change in who holds political power in a jurisdiction, would have a pretty modest effect in any case, and quite frankly, calls for more patience, discipline and capacity to engage in strategic thinking than most legislators have at their disposal.

At the state level, it is usually going to be easier for legislators with the political power to take these kinds of actions to change the substantive laws and legislatively overruled judicial decisions that they don't like, than it is for them to change the make up of the judiciary that interprets them so that it is more favorable to their point of view.  Obviously, this isn't possible if the laws that legislators seek to change are questions of federal constitutional law.  But, even state constitutions are usually fairly easily amended.  And, a variety of political precedents make manipulating the pay of federal appellate judges to encourage them to retire early a difficult or impossible task.

Footnote: Who Are State Appellate Judges?

The study, in the course of reaching its conclusions on judicial pay, does a nice job of profiling the background of the state appellate judges since the 1970s (although this is a lagging indicator and may not reflect the trends in new judicial appointments) (sample size 2207 judges, very nearly a complete data set).  Since judges may have multiple jobs prior to becoming a judge, the categories are not mutually exclusive.

African-American 2%
Male 79%
Judge Had Been an Academic 8%
Judge Had Worked in a District Attorney’s Office 20%
Judge Had Been a Politician 12%
Judge Had Been an Officer in the Military 7%
Judge Had Been a Private Attorney 47%
Judge Had Been a Judge on a Lower Court 60%
Judge Had Worked in a State Attorney General’s Office 7%
Judge Had Worked in a Public Defender’s Office 3%
Judge Had Worked in a U.S. Attorney’s Office 4%
Judge Had Been a Judicial Law Clerk 11%
Judge Attended a Law School Ranked in the Top Ten 19%

In 2007, the highest paid associate supreme court judges were in California, followed by federal supreme court associate judges (who make almost as much as the California judges), followed by associate judges of Delaware's highest court (who receive quite a bit less than federal appellate judges).  Colorado's supreme court is in the bottom third of appellate judicial pay.  Associate judges of the Montana Supreme Court, who are the least well paid appellate judges (and probably have a lighter case load due to the state's small size and a lower cost of living, than some of their colleagues), made about half as much as the California Supreme Court associate justices.

Relative to the pay of partners in top law firms in their jurisdictions, which state supreme court justices could usually have if they wished, state supreme court justices make 1/3rd (Tennessee) to 1/12th (New York) as much money. 

No comments: