Saturday, March 6, 2010

Justice for Judges?

Judicial salaries in New York state have not increased for over 10 years. Judges have complained about it, legal scholars have argued against it on grounds of legal justice and the need to safeguard judicial independence, and critics in general have denounced the tactic of tying judicial salaries to lawmakers' salaries as a political ploy. Or so tells us the New York Times in an editorial published today. The editorial concludes that "[r]efusing to grant any increase would be grossly unfair to judges, undermine the quality of the court system, and ignore the ruling by the Court of Appeals."

There is so much wrong in that one statement that I do not even know where to begin.

The unfairness point and the view that quality is undermined by low pay are just silly. Many things in life are unfair. But to argue that a salary of over $130,000 is unfair is hard to do, irrespective of what the judges do. If they don't like it, they can always get a new job. This, of course, is the segue to the quality argument. If judges are not paid enough, the best judges will choose to leave the judiciary for better paying positions elsewhere. This assumes many things about judges, including a method of judicial selection that ensures that only the best qualified candidates will assume office. New York state chooses its judges through elections, however, so the quality argument rings hollow.

Further, the quality argument takes a formalistic view of judging that does not comport with real life. Think of it this way. There are many people who would be willing to assume judicial office in New York state. The state chooses among them through elections. To be sure, many of these candidates are undoubtedly qualified, and hopefully the winning candidate is one of the qualified choices. But we have no way of ensuring that. This is one of the classic critiques of judicial elections. Note, however, how we readily equate quality with achievement, as if judging should only be reserved for the most qualified. This is simply not true, not even at the federal level. We know that. We also know that judges are not automatons, and that only the best judges will get the right answers to the legal questions presented to them. This is also a fanciful view of the judicial function. Judges are policy-makers,and elected ones at that; they just happen to have different constraints from legislators and executives. That does not make them any less political, or driven by ideological considerations.

The argument that low pay will affect the quality of the judiciary is simply not borne out by reality.

The third argument offered by the Times' editorial is curious at best. The state's highest court ruled last week that linking judicial pay to legislative pay violates the separation of powers' clause of the State Constitution. This is a lawsuit, mind you, began by judges wishing to see their pay increase.

You cannot make this stuff up. I think we have a name for this in law: conflict of interest?

Without question, these are difficult times. People are struggling to find jobs, or to hold on to the ones they have. Law school graduates are no exception. In this environment, pleading for higher pay is a hard sell. To invoke the state constitution, or argument of judicial quality or threats to judicial independence, should be taken for what they are.