We really shouldn’t type these words.
We know it. We feel it in our bones. But we can’t resist.
Chief Justice Roberts, in his 2006 Year-End Report on the Federal Judiciary, has once again raised the topic of judicial pay. He says that lawyers in private practice earn many multiples of what federal judges earn. This makes lawyers reluctant to accept federal judgeships and is creating a crisis in the federal judiciary.
We beg to differ.
Believe me, we know these are foolish words to speak. We spend our lives, after all, arguing cases before federal judges. The last thing in the world we want to do is to annoy those judges. In fact, let us say right now: We love you guys. You should be paid all you want. The riches of Croesus; the whole federal treasury; whatever. (Not only that — Beck insists that Herrmann is typing these words, and Herrmann insists that Beck is. Now neither of us can be blamed for the following blasphemy.)
Is low pay really making it difficult to fill federal judgeships? We doubt it.
First, the median salary for a lawyer in the United States with 20 years of experience is $120,000 per year. District court judgeships pay $165,200 per year, and appellate ($175,100) and Supreme Court ($212,000) judgeships more still. That means that far more than half of the lawyers in the country would be receiving pay raises if they accepted federal judgeships. How hard can it be to fill those jobs?
It’s true that — with all due respect to ourselves — fancy pants lawyers at white shoe firms earn a gazillion dollars per year, and those folks might be reluctant to accept federal judgeships for a mere $165,200 per year. But there are obviously lots of lawyers — working at small firms, public interest firms (on either the liberal or conservative side of the spectrum), the government, or academia — who would make fine judges and would willingly accept pay raises to hold those jobs.
Second, what the Chief Justice is probably saying, subconsciously or not, is that lawyers who look like him — lawyers at the most prestigious white shoe firms — make an economic sacrifice to become judges. That is surely true, but it leaves two unanswered questions. First, do we really need those lawyers on the federal bench? Can’t we fill all the vacant judgeships with the available supply of competent lawyers who don’t earn a king’s ransom every year?
And, second, is it really true that those well-compensated lawyers at large firms regularly decline federal judgeships that are offered? Maybe a few of them do, but many of them would surely accept judgeships, if offered. The job is a fascinating one; many people would like to give back something to the society (and profession) that has treated them so well; many have saved enough money to take the financial “hit” of becoming a judge; and the possibility of a job offering a more civilized lifestyle (with life tenure) surely appeals to many.
The problem is not that lawyers at fancy firms won’t accept these jobs; the problem is that nobody’s asking. People are lobbying aggressively for federal judgeships; the administration is not cold-calling competent lawyers at large firms and offering them judgeships. If the government were to call, we’re confident that many lawyers — even those at large firms earning spectacular salaries — would heed the call.
Hey, Beck’s at Dechert and Herrmann’s at Jones Day. You know the names, Mr. President, look up the numbers. We’re not making any promises, but give us a try.