John Roberts, Jr., issued his first year-end report as chief justice today, and he’s complaining that the federal courts are the victims of price gouging by the General Services Administration, the federal government’s landlord:
During fiscal year 2005, the judiciary paid $926 million to GSA in rent, even though GSA’s actual cost for providing space to the judiciary was $426 million. The disparity between the judiciary’s rent and that of other government agencies, and between the cost to GSA of providing space and the amount charged to the judiciary, is unfair. The federal judiciary cannot continue to serve as a profit center for GSA.
Roberts employs an odd definition of “profit,” given that all of the money involved was confiscated from taxpayers and put into a giant pot that Congress then apportioned out. The $500 million gap between what the GSA paid for office space and what was “charged” to the judiciary is not profit, just an accounting trick. Furthermore, the GSA has a monopoly on providing realty services to the federal courts. It’s not as if the Sixth Circuit Court of Appeals can go out and hire a private realtor to negotiate a better lease than the GSA is offering. So it’s rather pointless for Roberts to argue that the courts are paying “more rent” than other government agencies. Additionally, Roberts, channeling his inner teacher’s union president, argued that federal judges don’t make enough money:
A more direct threat to judicial independence is the failure to raise judges’ pay. If judges’ salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life. Figures gathered by the Administrative Office [of the United States Courts] show that judges are leaving the bench in greater numbers now than ever before. In the 1960s, only a handful of district and appellate court judges retired or resigned; since 1990, 92 judges have left the bench. Of those, 21 left before reaching retirement age. Fifty-nine of them stepped down to enter the private practice of law. In the past five years alone, 37 judges have left the federal bench—nine of them in the last year.There will always be a substantial difference in pay between successful government and private sector lawyers. But if that difference remains too large—as it is today—the judiciary will over time cease to be made up of a diverse group of the Nation’s very best lawyers. Instead, it will come to be staffed by a combination of the independently wealthy and those following a career path before becoming a judge different from the practicing bar at large. Such a development would dramatically alter the nature of the federal judiciary.
The chief justice’s math is misleading. In a 1992 study by the Federal Judicial Center, the average departure rate of Article III judges since 1789 is about 7% per decade. (The departure rate, as defined by the FJC, is the number of resignations divided by the average number of authorized judgeships during the decade.) According to Roberts, 55 judges resigned during the 1990s, when there were 828 judgeships (the number remained constant throughout the decade), yielding a departure rate of 6.6%, just below the historical average.
Roberts’ arguments have also been refuted by, of all people, Seventh Circuit Judge Richard Posner. In his 1995 book, The Federal Courts: Challenge and Reform, Posner wrote, “[a]lthough federal judges like everyone else consider themselves underpaid and would like higher salaries, I do not think that the current salary level is a serious threat to the quality of the federal judiciary.” Posner made three qualifications, however: (1) the disparity in pay between circuit (appellate) and district (trial) judges should be eliminated, (2) judicial salaries should be differentiated according to region to account for cost of living, and (3) judges should receive automatic annual cost of living raises.
Roberts’ argument that the widening gap between private sector and judicial pay will mean that courts will “cease to be made up of a diverse group of the Nation’s very best lawyers” is also highly suspect. As Posner wrote in 1995,
it is not at all clear that increased salaries would result in abler judges, since much higher salaries would increase the number of candidates for each judgeship, and if history is a guide, merit would not be the exclusive or even the paramount criterion for choosing among the candidates. Second, if we think back over the careers of the most highly regarded judges in our history, we do not find much relation between success in practice and success as a judge.
Roberts’ phraseology is also quite telling. How can one have a diverse group of the very best lawyers? The bar is already a self-selected elite, as they enjoy a monopoly on the practice of law. To limit the selection of federal judges to a small fraction of that elite is the very antithesis of diversity. And this elitism is not related to quality. There are many non-lawyers who could ably serve as federal judges. Indeed, for subjects such as contracts and bankruptcy, non-lawyers could actually perform more ably.
The substance of Roberts’ arguments is not aimed at improving the quality of the federal judiciary, but at reinforcing the privileged status afforded “elite” lawyers such as himself. As with his criticism of courthouse “rents”, Roberts’ concerns can only be addressed by ending the government monopoly on judicial services and allowing the market to act. But Roberts simply wants more congressional handouts for his fellow judicial monopolists. I’m surprised he didn’t employ the old teacher union standard of demanding “full funding” for the federal courts.
Related post: The feds are “gouging” themselves (Sept. 17, 2005)
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This indicates to me that the feds have so much money that agencies can charge each other rent. What a monstrosity.
The comment about judicial pay is ludicrous: lifetime tenure, $130K/year, pension, health care. Most lawyers would gladly swap places with federal judicial appointees.
The whole thing is non-market accounting tricks; more or less useless to focus on particulars. They probably do “the best they can,” at that–the internecine squabbling may contribute to that.
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