From time to time here at the Glom, we've become embroiled in interesting questions about how much certain professionals "deserve" to make, such as hedge fund managers.  A large contingent of our readers always answer back that these professionals deserve to make whatever the market pays them.  So, how do we apply this dialogue to the question of whether federal judges are underpaid?

Joe Mazzone at Co-Op this morning takes the position that the salaries for federal judges are not in desperate need of increases.  Prof. Mazzone's arguments to support this position seem to be that (1) why would we want judges who think that the $165k salary for a district judge is too low and are just in it for the money and (2) judges should recognize the perks of the office, such as "a permanent place in history."  Now, the market for federal judges does not seem like a free market, so we cannot depend on supply and demand to establish a salary for judges.  Also, judges are not engaged in a profit-making enterprise, so it's hard to point to this year's earnings to determine if judges are doing a good job or opine that they would do a better job if they were paid more.  As judges can't be fired for less-than-average performance (whatever that is), it's hard to evaluate the quality of the bench from year to year.  In addition, whether a judge is "good" or "bad" seems to be somewhat a subjective determination (except in extreme cases) without objective criteria to point to, such as profits.

Because I'm feeling contrarian for the moment, I will say that I don't find Prof. Mazzone's arguments compelling.   First, I'm not sure that wanting judges to be completely divorced from a profit motive is necessarily going to lead to great judges, and second, I would be more leery of an applicant who wants to be a judge in order to make history than a judge who would like to send his kids to college.  Ego seems to be as bad a vice as greed.  Yes, I understand that $165k is in the top 1% of the world and should be enough for anybody, but I don't think that is necessarily the point.  If it were, then the Astros could save a lot on salaries next year.  (And y'all think I'm the socialist hippie chick around here!)

One of the arguments for raising salaries, as Prof. Mazzone notes, is that worthy would-be judges may let the opportunity slide because the salary is too low.  Although Prof. Mazzone seems to discount this argument, I would argue that there is some validity to that.  I'm going to guess that $165k is about the going rate for a 4th year associate at a large firm.  Say that a would-be applicant is a young partner at a big firm making $450k a year with a good trajectory.  To be a federal judge would cost that person almost $300k a year, with the cost growing wider every year.  In a few years, that person might be paying as much as $700k to be a federal judge.  That's a lot to ask of a person.

Obviously, some jobs are more enjoyable than others, as all law professors know, and are worthy of that lost opportunity cost.  But I don't think that I would say that the junior partner at Skadden in NY bringing down a cool million a year should be marked as unfit for service because she doesn't feel like making $165k a year in the city, moving, and pulling her kids out of private school.  At the very least, the salaries should be indexed for cost of living.  The fact that the federal judge in Lubbock makes the same amount as a federal judge in the S.D.N.Y. seems quite silly.

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