U.S. judges' peanuts pay makes a case for righteous raises

Judge Roberts worries that without life tenure, the independence of judges may be seriously compromised. He didn't say so explicitly, but the suggestion is that judges might craft decisions to curry favour with potential employers.

The Globe and Mail
January 9, 2007

U.S. judges' peanuts pay makes a case for righteous raises
Barrie McKenna

WASHINGTON — We all do it, even when it hurts.

We compare what we make to co-workers, friends, former classmates, even a spouse. And it never seems fair.

After chief executive officer Bob Nardelli walked away with an eye-popping $210-million (U.S.) platinum parachute last week, Home Depot cashiers are probably looking at their paycheques with a deep sense of injustice.

The gap between the top and bottom of the heap is vast in the corporate world, and apparently growing ever more so. In 2005, a CEO of a Fortune 500 company made 411 times more than his average worker. In 1980, the ratio was a mere 42 times.

The situation in Canada is no different. Top Canadian CEOs earn in just two days what the average worker makes in a year, according to a study released last week by the left-leaning Canadian Centre for Policy Alternatives.

But there's another, far more troubling pay anomaly that should concern investors and business people.

In a highly unusual and surprisingly alarmist report, U.S. Supreme Court Chief Justice John Roberts has warned of a looming "constitutional crisis" unless Congress votes a hefty pay raise for judges.

Judge Roberts pointed out that judges have sunk to near the bottom of the pay scale in the U.S. legal profession. A federal judge, for example, now makes about half of what a dean of a top law school or a senior law professor earn. Top New York law firms pay law school graduates with no experience nearly as much as seasoned federal judges ($145,000 versus $165,200), according the National Law Journal.

Judges are falling further behind other lawyers. Adjusted for inflation, judicial pay has declined nearly 24 per cent since 1969.

The average U.S. worker's wage climbed 17.8 per cent over the same period.

"It changes the nature of the judiciary when judges are no longer drawn primarily from among the best lawyers in the practising bar," lamented Judge Roberts, who makes $212,000 a year.

Even a young law clerk can expect to quickly earn more in the private sector than the senior judges who showed them the ropes.

Jason Hoffman, a litigator at Kaye Scholer LLP in Washington, D.C., got a taste of what it's like to be a judge, clerking for a federal judge in Minnesota in the mid-1990s.

"It's not a cushy job," Mr. Hoffman explained in an interview.

"With a federal judge averaging over 500 cases on their docket, and a society that relies upon well-reasoned and timely decisions, the federal judiciary needs to attract and retain qualified people."

The problem isn't only that the best and brightest lawyers don't want to be judges any more. Seasoned judges are bailing out of a job that was once intended to be the pinnacle of a distinguished career.

"If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative career in private practice, the [framers' of the U.S. constitution's] goal of a truly independent judiciary will be placed in serious jeopardy," Judge Roberts warned.

In the past six years, 38 federal judges have left the bench, including 17 in the past two years. The attrition rate is worse among state judges, who earn even less than federal judges.

Judge Roberts worries that without life tenure, the independence of judges may be seriously compromised. He didn't say so explicitly, but the suggestion is that judges might craft decisions to curry favour with potential employers.

More generally, the consequence of poor pay is weaker judges — judges put in charge of society-altering legal decisions in the most important market on the planet.

If you don't think the quality of U.S. judges matters to Canadian businesses, talk to Jim Balsillie, co-founder of BlackBerry maker Research In Motion, or Ray Loewen, the former funeral home king from Vancouver.

Both men feel deeply aggrieved by their treatment at the hands of U.S. judges. A massive patent infringement judgment that should never have reached court nearly destroyed RIM. Mr. Loewen, meanwhile, has spent nearly a decade and a chunk of his personal fortune unsuccessfully fighting a debilitating $500-million punitive jury award in Mississippi.

Canadian lumber companies also know that the U.S. legal process can be long, costly and unpredictable.

Canadians who do business in the United States should all share Judge Roberts' deep concern about judicial pay, and the quality of judges the system is producing.

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