The Federal Judiciary Raise

By Steven Lubet

The issue of judicial pay is back in the news, prompted by the recent resignation of federal appellate judge Michael Luttig, who left the bench to take a position as general counsel of Boeing. A very highly regarded jurist (he was widely thought to have been on the short list for the Supreme Court), Luttig’s annual compensation at Boeing, including bonuses, might be as much as ten times the $171,800 he was earning as a judge. That’s obviously enough money to put his two children through college – a factor that he mentioned in his resignation letter.

If in fact Luttig resigned for financial reasons (rather than out of frustration or boredom), does that strengthen the case for increased judicial salaries? Chief Justice John Roberts probably thinks so. In his first “State of the Judiciary” message, issued last January, Roberts argued (as did his predecessor, Chief Justice Rehnquist) for a substantial judicial salary increase, calling it necessary to protect judicial independence:

Every time an experienced judge leaves the bench early, the judiciary suffers a real loss. Every time a judge leaves the bench for a higher paying job, the independence fostered by life tenure is weakened. Every time a potential nominee refuses to be considered, the pool of candidates from which judges are selected narrows.

In other words, judges need more money or else – like Luttig – they will quit.

That is a powerful argument, unless it turns out to be a bluff. And the fact is that federal judges just don’t quit in appreciable numbers. The annual turnover rate for the federal judiciary is less than one per cent, and that includes retirements as well as departures for private law practice. In fact, since 1990, only 21 federal judges have left the bench before retirement age, although the trend has increased a bit lately, with 9 resignations in 2005 (out of about 1000 judges at the district, circuit, and supreme court levels).

As any card player will tell you, bluffs don’t work unless your opponents (in this case the congressional purse-string holders) believe that you are really holding winning cards. That is, a good bluff carries with it the threat of real consequences – “call my bet and see what happens.” And that only works if you have previously “bet for value” on at least a few winning hands.

In this case, alas, the threat is obviously hollow. Federal judges evidently like their jobs – which come with life tenure and the prospect of eventual retirement at full pay – enough to tolerate their relatively low salaries. Thus, Congress can call the bluff with confidence, secure in the knowledge that the judges will continue to show up for work.

But please don’t get me wrong about judicial pay. Federal judges are indispensable to our democracy, and they work hard at their jobs. They should be paid more, and I would gladly vote for big increases if I were in Congress.

Unfortunately, the economic argument is a transparent bluff that is never going to work, at least until many more judges are willing to raise the stakes by actually quitting.

Steven Lubet is Professor of Law at Northwestern University and a nationally recognized expert on trials and trial strategy. His latest book is Lawyer’s Poker: 52 Lessons that Lawyers Can Learn from Card Players. Visit the Lawyer’s Poker website to learn more!