The Legal Salary Gap--Deadly for the Bench


The debate about salary raises for federal judges, members of Congress and other officers of the Republic reflects one of the less charming rules of capitalism: You have to pay, sometimes heavily, for doing what you want. University professors and schoolteachers know this, to their families’ cost. When members of either group complain that they make less than others with parallel skills, they are simply told, “If you’d like greater rewards, put yourself into a context where the more you work, the more you get.”

In this debate, however, context is everything, especially for federal judges. Had they, for instance, received 4% to 5% raises annually since 1969, their salaries would now be substantially above the recommended new scales. They, like all professionals, must live, work and socialize in a professional context in which salary scales and styles are set by the practicing Bar. We are losing roughly one-quarter of our federal judges because they can no longer keep pace with their professional brethren who have chosen to work in the marketplace.

Let me give a hard example of that from my own experience. A recent graduate of Georgetown Law School (admittedly one of the stars of his class) successively clerked for a federal circuit court judge and for a justice on the Supreme Court.A Wall Street law firm offered him a salary higher than any federal circuit judge’s and within $5,000 of what an associate justiceof the Supreme Court is paid. This offer was made before he had passed the Bar, when, despite his brains and promise, he would be described by any working lawyer as “wet behind the ears.”

At $110,000 a year, a Supreme Court justice is in no risk of starving. That is clear, but it’s not the point. When starting salaries at major law firms are $70,000 and more a year--not counting such perks as travel, meals while working, living allowances and annual bonuses of up to 30% of salary--it becomes more and more difficult for a judge to mix with working lawyers,to attend their meetings, to feel and be part of the professional world on which his expertise and service rest. No one claims that the judge ought not to pay for the privilege of doing what he wants to do--that is, judging. But the salary gap between the practicing profession and the bench has now become so wide that, even in their own minds, the judges are made to feel like lesser lawyers. This is not good for the profession, and it is deadly for the bench.


In academic circles we have had parallel experiences. A dean or a chairman with a $70,000 salary to offer will have no difficulty whatsoever in hiring a classicist, a philosopher, an art historian. Indeed, in my own department, English, a $70,000 salary will pluck one of the stars of the academic firmament. Any chairman or dean, however, searching for an economist, will find that a $70,000 salary is sneered at not only by the top of the profession but by a good bit of its middle as well. Exactly the same is true for computer experts, some chemists and several kinds of biologists.

There are never enough stars in any academic sky, but more is at stake than that. In at least a dozen academic departments, university salaries over the past 10 years have risen sharply. Nowhere is this more true than in law schools, where over the past decade they have coolly doubled.

I am not economist enough to know the exact formula, but I am realist enough to know that nonprofit salaries are tied to the profit sector. The tether is a long and loose one, as all academics know to their cost. But the tie is still real, and when the tether gets too loose the quality of research and teaching sinks below acceptable levels.

Unlike the academy, government introduces a new dimension. We can call it decorum, or use that strong Southern word fittin’ . We could, for instance, cram both House and Senate into the two halves of the old Pension Building and squeeze the President and the Cabinet under the great pillars in the middle. When legislators or executives needed privacy, they could repair, as in days of yore, to the lobby of Mr. Willard’s hotel. This would save us the cost of running the Capitol and its cluster of office buildings, not to mention the White House.

Such a suggestion is, of course, ridiculous on its face, and, more than ridiculous, it is offensive. “We the people” do not want the federal government housed in squalor. We want its days and its works to reflect the dignity of a great republic. We want its people to dress, behave and speak in terms of that dignity. Dowdiness and informality we permit ourselves, but we do not appreciate it in those who speak for us as part of our government. In this our instinct is healthy and right. Decorum may be an old-fashioned word, but it is a sharply etched, modern demand that we all make.

King Lear had it right: “Allow not nature more than nature’s needs, man’s lifeis cheap as beast’s.” Our government is an image and a measure of ourselves. Cheapness has no part in either. This raise is overdue by a decade, and it should go through.