In his year-end report, Chief Justice John Roberts says low pay for federal judges ‘has now reached the level of a constitutional crisis.’ Roberts is correct that salaries for judges have not kept up with inflation. In fact, in real terms they have fallen by a fourth since 1969. Economic theory supports his further assertion that low salaries ‘will inevitably result in a decline in the quality of persons’ willing to serve as judges.
This issue illustrates the knotty problems that arise when the quantity or quality of an employee’s work is difficult to evaluate. Our nation needs wise and competent judges. But it is hard to measure judicial wisdom and competence.
It certainly is possible for a knowledgeable person to look at the qualifications of potential judges and decide whether they are fit for the job or not. One can also look at the work of sitting judges and identify those of superior ability.
It is difficult, however, to reach any objective conclusion that the quality of the judiciary is declining over time, and that such a decline is due to eroding salaries.
For some private-sector employers who hire burger fryers, diesel mechanics or printers, such evidence is somewhat easier to come by. The productivity and skill of such workers are easier to rate. When employers experience high employee turnover, or if job applicants are few in number or lack requisite skills, they know they need to look at raising wages.
The hiring process for federal judges differs from most other jobs. Positions are not advertised and unlike civil service jobs, there are no competitive exams.
Instead, the president nominates judges and the Senate votes to confirm or not. In practice, the process depends heavily on input from members of Congress from the state where the judge will serve. The Justice Department also does extensive checking and evaluation before the president makes his choice.
Qualified attorneys can indicate their desire for a federal judgeship informally, through professional and political contacts. The process is not openly political, but Republican presidents usually appoint Republican judges and Democratic presidents appoint Democrats.
So reaching objective conclusions about the quality and size of the pool of potential judges is difficult. The question is not “Who are the top-ranked 50 out of 500 applicants?” but “Have we found a well-qualified attorney with views I like?”
Reportedly, increasing numbers of judges are choosing to resign and citing low pay as a factor. Judges’ salaries have dropped compared to those of law school professors and deans and of experienced trial attorneys.
Moreover, some U.S. senators indicate that fewer attorneys are indicating interest in judgeships and that they get more negative responses when they query prominent lawyers and professors about their interest.
Whether that constitutes a “constitutional crisis” is a subjective question. It is one that only the president and Congress can answer.
© 2007 Edward Lotterman
Chanarambie Consulting, Inc.