Adam Liptak, whose output at the New York Times has dropped precipitously in recent months, probably as a result of the time require to polish up his resume, questions again the claim that Federal judges are underpaid.

“I couldn’t find any evidence to support his claim,” Scott Baker, a law professor at the University of North Carolina, said of the chief justice. Professor Baker published a study last year in the Boston University Law Review that considered whether society would be better off were judges paid more as a matter of labor economics.

Its conclusion: “Pretty much nothing would happen if Congress decided to raise judicial salaries.” Money appears to have almost no impact on the quantity and quality of the work judges produce, Professor Baker found, and lots of capable people are eager to take the jobs at the current salary.

It gets uglier from there:

A second study to be published in The Journal of Legal Analysis, a peer-reviewed publication at Harvard Law School, goes even further. Its title seems calculated to provoke the people who wear black robes at work: “Are Judges Overpaid?”

The problem begins, of course, with deciding on a metric to use to determine the question.

The professors collected data and analyzed it using the tools of economics. They measured things like productivity (number of published opinions), quality (how often other courts cite those opinions), speed (how quickly opinions are produced) and independence (how often judges disagree with colleagues with similar political views).

While such criteria fit well within the Church of Empirical Studies, they fail to address anything relevant to the work judges do.  The pay to quantity relationship is meaningless on its face, as judges aren’t support to produce more work for higher pay as if they worked the assembly line.  By employing such criteria, the studies appear facially pointless.

On the basic facts, there is little issue that judicial pay has decline in real terms:

Federal district judges make $169,300; federal appeals court judges, $179,500; Supreme Court justices, $208,100; and the chief justice, $217,400. There is no question that those salaries, which increased 2.5 percent last year, have dropped significantly in real terms in recent decades or that they represent a small fraction of what partners in big city law firms make.

This year, federal judges, alone among federal employees, did not even receive a cost-of-living adjustment.

However, that doesn’t preclude the argument that they were overpaid before and are not underpaid now.

On the other hand, being a judge is pretty sweet work and the job is in high demand. It comes with status, power, good working conditions, no clients, the ability to affect policy and the satisfaction of doing justice. Federal judges get very good health care, exceptionally generous pensions and the ultimate in job security — life tenure.

The fact remains that there is a large pool of well-qualified candidates for the federal judiciary, happy to take the job at its current rate of pay, which suggests that the salaries aren’t too low.  While Chief Justice Roberts claims that “38 judges left the federal bench from 2000 to 2005,” Judge Posner counters that “[o]nly 12 federal judges had resigned out of a total of 1,200 active and senior judges in the years in question, a small number in absolute terms and a smaller percentage than in the six years ending in 1974,” following a 30% salary increase in 1968.

The problem is exacerbated by the arguments frequently made in support of a judicial pay raise.  Chief Justice Roberts claimed that the problem ““has now reached the level of a constitutional crisis.” 

Many judges say the entire enterprise is absurd and insulting. “The country wants and deserves the strongest possible judiciary, and we should be willing to pay for that,” said David F. Levi, the dean of Duke Law School and a former federal judge. (He said he did not step down for financial reasons.)

By tying pay to quality and judicial independence, these arguments create the basis for their own failure.  While it’s no doubt hoped that cries of judicial suffering will resonate with the masses, it suggests that the public will suffer for wont of a judicial salary increase, when there is essentially no chance of that happening.  And demonstrating how out of touch the judiciary can be, crying over a $169,300 paycheck with great benefits really won’t evoke much sympathy from the single mom with 3 kids. 

Still, this fails to address the stagnancy of salaries, the decline of real income over the years, or the expectation of those who wear the robes to avoid having to beg at the legislative trough.  Liptak ultimately arrives at a curious calculus,

What is most interesting about the basic argument made for a judicial pay raise is that it appeals to a value that many judges resist in other contexts. It is an argument about fairness and respect. It is the sort of argument liberals make for raising the minimum wage or for laws that guarantee equal pay for equal work.

This certainly smacks of an opportunity.  So many federal judges land on the bench following a lifelong career with the government or a comfy corner office in Biglaw that they have no concept of what life is like for real people.  The same hard-hearted hanging judge is suddenly whining about the unfairness of it all when it’s his ox being gored.  It’s completely understandable given his peer group; Going from Gucci loafers to silken robes doesn’t lend itself to hearing the vox populus in ones sleep.

While the salaries of federal judges do not meld easily with economic theory, lacking easy empirical justification for an increase, I remain of the view that, at minimum, federal judges should not lose real earning power on their salaries, and in more concrete terms, should enjoy an increase in real terms over time, just as everyone else in the country wants. 

How much of an increase is a different matter, but one metric I’ve always believe appropriate is that they must be ahead of first year Biglaw associates.  To do otherwise is fundamentally demeaning to the role of the judiciary, from whom we expect slightly more than Biglaw does of its new kids. 

While judges should not, and I believe do not, take the job because it pays well, the oath of office is not an oath of poverty as well.  They have lives, wives and children, and are accomplished individuals for whom it is not unreasonable to expect a comfortable life.  They really shouldn’t have to brown-bag it to make ends meet, and as much as their salary seems pretty generous to most Americans, in the scheme of the upper-middle class, it’s really quite marginal. 

Still, it would be awfully nice if federal judges were able to realize this from some personal experience.  Maybe the metric that needs further development is how closely the federal judges can relate to the real people of this country, who struggle daily, makes mistake, try their best and hope that someday their children will be federal judges (and make a decent living with life tenure).