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Will Higher Judicial Salaries Increase Quality? Judge Posner and Son Say No

Last week, Supreme Court Chief Justice John Roberts ushered in the New Year with his annual pitch for increasing judicial salaries in order to attract and retain qualified jurists to the bench.  But some law professors, including Eric Posner, son of Seventh Circuit Court of Appeals Judge Richard Posner, are skeptical that higher salaries will improve the quality of the bench and prevent resignations, according to this story, Pay Hikes for U.S. Judges Challenged.  From the article:

"There isn't much evidence that higher judicial salaries impact the performance of the federal circuit judges," said Scott Baker, a law professor at the University of North Carolina School of Law who recently tested the notion. His study, which will be published next month in the Boston University Law Review, showed circuit judges' performance, based on opinions, didn't change from region to region with the varying spread between their pay and the next best professional opportunity. He used a judge's vote on a given case, speed in judging controversial cases, citations to and by other judges and dissents to evaluate the quality and independence of the opinions.

And another study by Eric Posner and two other law professors found that while higher paid judges did write better-quality decisions (based on number of out-of-state citations), they discovered no relationship between pay and independence.

But so how does Eric Posner's dad feel about all of this?  Last year, Judge Posner expressed his opinion on judicial salaries on his blog.  Like his son, the elder Posner believes that a salary increase would have little impact on improving the quality of judges or preventing resignation.  Judge Posner also made another important point:  that judicial salaries are not as low as they might appear, given that judges have the ability to earn additional pay and also receive generous benefits, both financial and non-pecuniary:

The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay (the ceiling on outside income, apart from investment income and royalties, and a very low ceiling given current law school salaries—which benefits judges, since they can teach less to reach their ceiling, as it is an ever-diminishing percentage of a professor's salary). The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life; nor does he make any contribution to funding the pension. The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

As with so many other Posner decisions, it's hard to question his reasoning here either.

Posted by Carolyn Elefant on January 11, 2008 at 02:47 PM | Permalink | Comments (1)


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