Tuesday, January 02, 2007

Judicial Pay and Basic Economics

Mike's post below regarding judicial salaries roused the economist in me. Although I believe him when he says that "the Court would not hold that failure to increase salaries, even in the face of rapid inflation, violates Art. III," I have to ask how that could be true. Having taught the difference between "real income" and "nominal income" to eager undergraduates too many times to count, I find it stunning that there is no judicial recognition of the difference.

What could the reasoning be? Article III states, in relevant part: "The Judges ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." On "plain meaning," this clause is ambiguous at best, and it even leans slightly toward the interpretation favoring the protection of judges' real incomes, not just their nominal incomes. Note, for example, the use of the term "compensation" rather than, say, "sum of dollars." When we move to virtually any other interpretive crutch, though, how could this language not protect judicial compensation from inflation-induced diminution? Doesn't substance over form mean anything? And what about the drafters' intent? The purpose of the provision, so far as I am aware, is to protect the judiciary from being punished by the political branches for its decisions, thus protecting judicial independence. Given that my first partisan thought on this was that now would be a bad time to raise judges' salaries, given that I personally don't like the current composition of the federal judiciary on ideological grounds, I find it pretty easy to imagine that politicians might think along similar lines. Interpreting Article III to require the maintainance of judges' real incomes (adjusted for inflation, not relative to academic or other salaries) seems like a slam dunk, to borrow a phrase. Again, I know that the law says otherwise; but the law can be such an a--.

On the merits, Mike suggests that Roberts might be arguing "that the President and the Senate can make idealism a criterion for judicial selection, but they can't use a de facto pay decrease as the mechanism for ensuring such idealism." If that is what Roberts is arguing, though, I don't get it. I'm still enough of an economist to think that the best--and maybe the only--way to ensure that someone is doing something idealistically is to pay them poorly or not at all. (Of course, given that judicial salaries are still well over $100k, we're not talking about poverty wages.) If they're being paid well, what other mechanism would we use? Personal testimony? I guess we have actually been expected to believe judicial nominees who have claimed that they have not pre-judged certain issues (or, perhaps, have not even thought about Roe v. Wade), so we might be expected to smile and nod when a nominee says, "The new $400,000 salary of a federal judge in no way motivates me to want this job," but forgive my skepticism. If we really do want to require idealism of our judges, I cannot think of a better way to enforce that than by letting their real salaries decline. (Again, though, I think that doing so violates the only reasonable reading of the Constitution.)