Having received the 32nd email from the State Bar Association asking for my help in supporting the increase in judicial salaries, it seems like a fine time to have a frank discussion.  For most lawyers, this is a no-brainer.  And indeed, there can be no rational person who disagrees with the notion that even judges deserve a salary increase once every 17 years.  But…

There are some issues that need to be discussed.  So let’s give it a go, shall we?

In the “pro” column, judicial salaries have stagnated for way over a decade because of political shenanigans: Legislators trying to tie their salaries to judges’ salaries so that they can enjoy the backdoor largesse while shifting the blame on the judiciary. 

Also in the “pro” column, first year associates at “biglaw” are paid more than judges.  This juxtaposition points out the absurdity of the current situation.  First year associates, the legal equivalent of bell hops, are paid more than judges, our virtual King Solomon’s.  Under the compensation theory of relative worth, this is a travesty.

But then, we have some issues.  First, becoming a judge was once considered the crowning glory of a legal career.  It was what one did after many years of experience, honed in the well of the court.  A judge brought the accumulated experience of the lawyer, the appreciation of the plight of the common man, the astute recognition of the beauty of the law to serve society.  A judge (picture Judge Wapner) possessed the understanding and temperament that can only come from a breadth of experience as an attorney that spanned the full spectrum of human interaction and experience.  Sigh.  Dontcha miss those days?

Today, the judiciary is a separate parallel career path.  Youngsters are being appointed and elected to judgeships, often straight out of the District Attorney’s office, who have never had the experience of dealing with clients, understanding their needs and concerns, appreciating their misconceptions about the law and the process, suffering for the actions (or inactions) of judges.  I’m not suggesting that they are not good judges, but they often lack any appreciation of how their decisions and conduct impact on attorneys and, more importantly, the human beings they swear to serve.  Even the best of them have monumental gaps in their background that give rise to unintended misery for the very people who depend upon them most.  This is a problem.

Further, should someone become a judge for the money?  To serve in the judiciary was an honor.  This was public service, something one could afford to do because one saved one’s pennies while practicing law and could now live off the accumulated wealth.  It was never for the money.  It should never be for the money (apologies to former Judge Garson).

Unfortunately, this changes when a young judge has young children who need braces, or college tuition bills are looming in the future.  Or the dreaded “ice sculpture” nuptuals.  Having always sucked up the public weal, and never having suffered the indignities of paying office rent, they lack the accumulated savings that enable a judge to serve in Plato’s Republic without any concern for personal needs.  These judges need to make a buck.  Why should they have to live like paupers, with only one black robe in their closets?

Of course, the answer is fairly clear.  If they can’t afford to be judges, perhaps they would do better to work for a living in the halls of justice like the rest of us until they have accumulated the necessary wealth, not to mention experience, that would enable them to sit comfortably on the bench.  There is no god-given right to sit on the bench AND make a decent living at the same time. 

A large part of this problem stems from the fact that these youngsters serving the public as prosecutors (and sometimes legal aid lawyers) and law secretaries make for easy judicial fodder.  They gain some decent political connections within the system, and enjoy the pristine life-style that many lawyers in the trenches can barely remember from the youth.  They don’t bring all the ugly baggage that comes with practicing law with real clients who have real problems.  They don’t leave behind a messy string of decisions where they represented people with whom they don’t necessarily agree or support. 

So where is the proper tipping point for judicial salaries?  What’s a judge worth to society?  Clearly, more than a first year Biglaw associate.  But not necessarily enough to support a young family.  Perhaps if we took a big step back and looked at the people being appointed and elected to sit on the bench from a more functional perspective, we would find that this is less a matter of finances and more a matter of propriety.  Higher paid, but still devoid of real world experience, will not give us a better judiciary.  Just a more expensive one.  Let’s pay judges a lot more, but lets make sure we have the right people sitting as judges.  There will be time for these youngsters to earn their bones and then, and only then, sit high on the bench.  And they will be better judges for it.