Monday, March 12, 2007

Poor judges?

Dahlia Lithwick, who writes for the quirky and always interesting Slate, is beyond question -- to me, anyway -- the best reporter and writer covering the Supreme Court and, more generally, legal matters infused with a public interest. Whether she is writing about the justice's personalities, their public speeches, the interplay between the justices and advocates during oral argument, analyzing opinions or just offering commentary on important legal issues, Dahlia (none of her male fans, particularly those with unspoken crushes on her, refer to her by her last name) is so much smarter, more clever and simply more fun to read than any of her peers. So it's not easy to disagree with her, especially when she comes closer than anyone else to convincing me that she is right about something for which I just don't have much sympathy.

In yesterday's Washington Post and in this morning's Slate, Dahlia enters the debate on whether Supreme Court justices are underpaid, and does so by comparing what they earn with what their former clerks can expect to earn once they leave the roost for the elite private law firms that covet them. A former Supreme Court clerk can expect a signing bonus of $200,000 on top of a first-year salary of anywhere from $145,000 to $160,000. Sure, they'll work all the time and not have much time for anything else, like a life. But $360,000 per year is A LOT of money for someone entering their chosen profession.

Pity poor Antonin Scalia, David Souter or John Paul Stevens, the most senior member of the Court. Here they are, at the apex of their profession, and all they earn is $203,000 per year. No wonder they take speaking and part-time speaking gigs to supplement their income. John Roberts receives just an extra $9,000 for his service as the Chief Justice of the United States (not just the Supreme Court, mind you). Really, can you blame these guys for sneaking food into their briefcases from the Shoney's breakfast bar or stealing packs of Sweet 'n Low from their local Denny's after taking in the early-bird special? During college, when I worked as a waiter in various not-so-fancy restaurants, we used to call "cost-conscious" customers "come-withs," as in, "Does the club sandwich 'come with' fries?" or "Does the breakfast special 'come with' coffee?" Our customers were generally students or old people on a budget, not elite professionals coming to grips with the pains of middle-class life as a result of their decision to serve the public.

Serve the public. Government servant. Public servant. Get it?

Personally, I don't care what private law firms pay their associates or partners. If an elite private firm decides that a first-year associate is worth $145,000 or that experienced partners should earn close to $1 million per annum, far be it from me to get in the way. Let the firms and their clients fight it out over whether lawyers are overpaid. While most lawyers in private practice don't earn even close to that much money, these are the stories that make the news. And it is the compensation for these former-clerks-turned-private firm-lawyers, not the broader population of lawyer worker-bees, that rankle federal judges, whether those serving on district or appellate courts, or the nine justices that have chosen to accept their appointments to the Supreme Court.

Let's take a former Supreme Court clerk who is weighing one of those $360,000 first-year packages from an elite law firm with an appellate practice in the federal courts. Suppose she has an offer to teach at a top 20 law school, where her compensation will be considerably less in the first year and over time. And suppose she has another offer to enter government service as a lawyer the Civil Litigation section at the Department of Justice or -- and this really stretches the hypothetical -- to serve as the general counsel for the American Civil Liberties Union or head the constitutional studies department of the Cato Institute. After thinking about the long and short-term benefits carefully, she chooses the Justice Department job, where, should she stay in the job for fifteen years, will never earn in one year what she could have earned had she taken the $360,000 package to work for Carter Phillips (Phillips is among the most respected appellate lawyers in Washington, if not the country, and is the person who introduced the idea of recruiting former clerks with bonuses over 20 years ago).

Why should anyone feel sorry for her? Faced with four very good choices -- and let's take into account that the quality of a work-life, the work you actually do, is an important factor is the choices that professionals make. Earning over $100,000 per year puts one in the upper 1% of individual earners in the United States. Sometimes that fact is lost on people who only look up at what other people with their education are earning, and not down at what the rest of the world, including other well-educated professionals, are earning for their labors. If federal judges have to think twice about ordering a second bottle of overpriced wine with dinner, or spend time in the aisles of Giant deciding whether to save 45 cents on saline solution by buying Care One instead of Bausch and Lomb, then it places them among the people they have chosen to serve.

A decision to serve the public means a lawyer has made a choice, and that choice comes with plenty of perks: interesting work, a high-status occupation, the freedom to hire the brightest students in the country to clerk for you and power to shape the law. Moreover, if we take the notion of government service literally, then one shouldn't become a federal judge or decide to take the top job at the Food and Drug Administration as part of a get-rich-quick scheme. Teachers in the public school system are public servants too, and my guess is that not too many federal judges are staying up late thinking about how woefully underpaid the best ones really are, and how much better off we would all be if we stuck a "1" or "2" in front of the $50,000 per year that experienced teachers earn. Every teacher I have ever known entered the education profession because they genuinely love what they do. But few professions demand as much and reward as little as public education. And I don't see Congress or the state legislatures responsible for setting pay scales for public school teachers worked up about the economic injustices visited upon their children's favorite math teacher.

Can't make enough as a federal judge? Don't take the job. To me, that is the simple solution. The economic marketplace is good at determining worth only if we assess worth based on the microeconomics of labor contours and the economics of the firm. True worth involves much more than the monetary value attached to labor. That is the reason I don't feel sorry for lawyers and judges wrestling with what is truly fair compensation. And that is also the reason I don't feel sorry for professional academics who lament the "vow of poverty" that they took to teach Shakespeare, European art history or political science to undergraduates. In fact, my sympathies there are even less pronounced than for lawyers facing million dollar trade-offs. But that is a topic for another day.

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