When judges cash in

Life tenure for judges is a hedge against their being pressured for favorable judgements by powerful litigants. That doesn’t work as well if judges start to regard their seats on the bench as mere way-stations to lucrative private-sector jobs.

J. Michael Luttig gave just gave up his seat on the 4th Circuit Court of Appeals for a job as VP/General Counsel at Boeing. In doing so, he probably moved up his annual income ($171,000 as a judge, with few-to-no outside earnings opportunities) by an order of magnitude: maybe more, counting non-cash compensation.

This has become a trend in recent years, and it’s not a trend favorable to the rule of law.

Lifetime judicial tenure (service “during good behavior”) was a fundamental demand of the liberal revolutionaries in 17th-century England. It was important for two reasons. First, it kept the government of the day from ensuring favorable verdicts by firing judges who might rule the “wrong” way. Second, it allowed the judges to focus on the demands of the law rather than worrying about how to keep their jobs. Otherwise, ruling against a powerful litigant might put a judge’s job at risk.

That works fine if judges intend to take advantage of their lifetime tenure. But it doesn’t work as well once they start to regard judicial appointments as mere stepping-stones to jobs with law firms or corporations.

It won’t matter for routine corporation v. corporation battles where both sides have giant law firms. But a judge who takes a strongly pro-plaintiff view in tort suits or a pro-employee view in labor-relations, wages-and-hours, job-safety, or employment-discrimination cases, or who rules for the litigant represented by a solo practitioner against one represented by one of the many branches of Pig, Pig & Pig has to figure that he or she is cutting into future employment opportunities.

The massive, blatant corruption that now infects the Executive Branch and the Congress is, we can hope, episodic and temporary, though the more fundamental corruption that operates through campaign finance will remain. But until now we’ve had a reasonable hope that the courts, at least, are more or less honest. It would be a shame to lose that.

At some point, we’re going to have to deal with the growing gap between the salaries of top public officials and the compensation available in the private sector. Wouldn’t it be nice if a Congressman could afford to buy lunch for a lobbyist every once in a while?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

16 thoughts on “When judges cash in”

  1. Mark Kleiman wrote, "This has become a trend in recent years, and it's not a trend favorable to the rule of law."
    Not true in the case of Luttig.
    "U.S. Can Confine Citizens Without Charges, Court Rules," By Jerry Markon, Washington Post Staff Writer, Saturday, September 10, 2005; Page A01, first paragraph:
    "A federal appeals court yesterday backed the president's power to indefinitely detain a U.S. citizen captured on U.S. soil without any criminal charges, holding that such authority is vital during wartime to protect the nation from terrorist attacks."
    Later, the article states,
    "The 4th Circuit decision could also play a role in the debate over whom President Bush will nominate to the Supreme Court seat to be vacated by Justice Sandra Day O'Connor. The decision was written by Judge J. Michael Luttig, a favorite of conservative groups who is considered to be among the leading candidates for the nomination. He was joined in the ruling by judges William B. Traxler Jr. and M. Blane Michael, both Clinton administration appointees."
    Given that any judge who agrees with this isn't fit to be dogcatcher, let alone a Federal appeals court judge, this is one less judge we'll have to impeach.

  2. "But until now we've had a reasonable hope that the courts, at least, are more or less honest. It would be a shame to lose that."
    I lost that with Bush v. Gore.

  3. See the earlier post about Sweden for enlightenment about this. That $171,000 easily puts an Appeals Court judge in the top 2 or 3 percent of American salarymen. I never expect to earn that much, in real terms.
    And yet, private-sector earnings for people of the level of distinction of an Appeals Court judge or a member of Congress far, far exceed the generous government salaries.
    The rich have gotten so much richer that six-figures feels like the poorhouse to these guys. It's nuts.

  4. "Wouldn't it be nice if a Congressman could afford to buy lunch for a lobbyist every once in a while?"
    So, which do you want? Higher pay for Congress or judges (easy to fix), or lower pay for lobbyists or corporate board members (not so easy)?

  5. I understand your point, but at the same time it is my observation that most capable, knowledgable people don't want to do the same thing for more than 5 years; 10 at the most. The work gets boring and you get stale. Sure, a judge is somewhat like a consultant in that he gets a variety of cases over time, which offers some relief. But how many discovery disputes and appeals from 2-bit druglords can one hear before deciding it might be time to do something else for a while?

  6. The commentator "trotsky" understates the actual compensation paid to Federal judges. Since most Federal judges remain on the bench for life, receiving full compensation and benefits even when on "senior" status, their compensation package includes what is, in effect, an incredible pension. There is also a substantial actual pension benefit for any surviving spouse.
    I understand that Judge Luttig has two children who will, presumably, matriculate into high priced colleges. Yet, he can easily afford their tuition with his judicial salary. All that he needs to do is borrow the funds, paying them back over time with his judicial salary which is certain to rise. The possibility of a premature death or disability can easily and cheaply be hedged via insurance.

  7. Cranky Observer wrote, "I understand your point, but at the same time it is my observation that most capable, knowledgable people don't want to do the same thing for more than 5 years; 10 at the most."
    I don't disagree with the desire to change what one does every so often, but my own anecdotal experience is that people don't do it too much.

  8. I think it would be nicer if lobbyists couldn't afford to buy lunch for congressmen.
    Basically, we'd solve a lot of problems if advertising and lobbying were not deductible business expenses.

  9. Luttig spent 15 years on the federal bench. This is not what you'd do if you viewed your judgeship as a stepping stone to more lucrative employment.

  10. No, although as the WSJ points out today, spending 15 years on the bench is something you'd do if you viewed it as a stepping stone to a higher position on the federal bench.
    They also point out that he got hung out to dry by the Bush Administration in the Padilla case, saying that they had the authority to hold him as an enemy combatant on the grounds of serious national security concerns, only to have them send him off to face trial on some other conspiracy charge when it looked like the Supreme Court might actually hear the case.
    Of course, federal judges don't work for the administration, or at least don't have to if they don't want to, so it's hard to feel too much sympathy for him.

  11. re "Wouldn't it be nice if a Congressman could afford to buy lunch for a lobbyist…". What makes you think they can't? How many millionaires in Congress these days?

  12. I think you may be being unfair to Luttig. My understanding is his resignation was prompted by disgust at the administration's interference in the Padilla case. I suspect he also might have been disappointed that he had been passed over for the Supreme Court, and concluded that his chance to get that appointment was over. Either way, there's reason to believe that money wasn't the primary motive. (And I'm speaking as someone who profoundly disagrees with Luttig's judicial philosophy.)

  13. How much is minimum wage again?
    Cry me a river over judge's salaries; if they are committed enough to work for a couple hundred large, maybe we don't need them on the bench?

  14. As has been noted over at the Volokh Conspiracy, there's probably something other than the money going on, or we'd have seen significantly more of this kind of thing already. If lots of judges were leaving office to work in the private sector, there'd be cause to worry, but Luttig is a rare case, which is why it's so newsworthy. If Kozinski and Posner follow in the near future, then it's time to worry.

  15. Great post!
    Want to know how low federal judges' salaries are? 26-year-old first year lawyers in New York make 145,000 plus a bonus of 20K to 150K. More than the Chief Justice of the United States. Partners make at least a million a year.
    The bullsh*t populism that says highly-skilled federal employees shouldn't be well-compensated empowers the war-mongering evilcons at Boeing and Exxon, who are always happy to give their loyal cronies in government millions after they retire in return for favorable actions when they are in office.

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