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University of Chicago Law School's Eric Posner
When Chief Justice John G. Roberts Jr. repeated his annual call last week for a boost in federal judges' pay, some law professors were ready with new research to question the premise that higher pay will attract the best jurists and stem rising resignations.
Law professors from four schools, including the University of Chicago and Duke law schools, say their data show judges aren't leaving the bench in higher numbers and that paying bigger salaries won't necessarily result in better judges.
"We want to inject a bit of skepticism and realism into the debate," said Eric Posner, a law professor at the University of Chicago who worked on one of the studies and who is the son of 7th U.S. Circuit Court of Appeals Judge Richard Posner.
Roberts argues, with backing from other judges, attorneys and law school deans, that judges' salaries have dropped by 25 percent on an inflation-adjusted basis since 1969, dampening interest in judgeships and threatening the diversity and independence of the judiciary. He called the situation a "constitutional crisis" last year. The House of Representatives Judiciary Committee last month passed a bill that would increase salaries by 29 percent, but the Senate has yet to act.
Under 2008 rates, U.S. district judges earn $169,300 annually, while circuit judges get $179,500. Supreme Court judges are paid $208,100 except for the chief justice, who earns $217,400. Judges receive the salary for a lifetime, even after they retire, if they meet certain service and age requirements. The most recent raise, aside from cost-of-living increases, was in 1991. Under the proposed legislation, new salaries would range from $218,000 to $279,900.
Major U.S. law firms last year increased pay for first-year associates to $160,000, and some young attorneys make more than judges when their bonuses are included. Partners at top firms earn more than $1 million, on average.
Still, the group of professors is breaking ranks with colleagues on the impact of the widening chasm. They say power, prestige, job satisfaction and influence are benefits of a judgeship that make pay increases less important. The scholars know each other and acknowledged guidance from Judge Posner, who last year questioned Roberts' basis for a salary boost in his law blog.
"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.
Even if a lower salary discourages some applicants, the remaining candidates will still perform similarly to those who walked away, Baker concluded.
The study by Eric Posner, Mitu Gulati of Duke Law School and Stephen Choi of New York University School of Law sought to measure the effect of pay on judicial performance by assessing the opinions of state supreme court judges from 1998 to 2000. Those judges' salaries ranged from $84,000 to $150,000.
The researchers found no increase in judges' productivity unless there was a threat of not being re-elected or reappointed, according to the study, posted recently on the Social Science Research Network. They found that higher-paid judges wrote higher-quality decisions, based on the number of out-of-state citations, but discovered no relationship between pay and independence.
"The case for increasing the salary of federal judges is not particularly strong," the researchers concluded. "Even if increasing salary increases the quality of opinions, we would still need to know whether the social value of this extra quality is worth the price."
Baker also challenged Roberts' figure on departing judges, pegged at 38 from 2001 through 2006, saying the figure was inflated by retirements. He found that just 15 of 1,124 federal judges resigned before retirement from 2000 through 2007, according to the online database of the Federal Judicial Center, the research arm of the U.S. courts.
But Roy Schotland of Georgetown University criticized the research as defying common sense. He echoed Roberts' concerns about lower pay drawing a higher percentage of public sector lawyers. "Do they honestly believe that American lawyers don't care about their income?" Schotland said. "It's preposterous."
