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Want Less Ideology on the Federal Bench? Pay Judges More

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Want Less Ideology on the Federal Bench? Pay Judges More FORR FINAL PRINT REVISED.DOCX (DO NOT DELETE) 2/15/2010 3:21 PM COMMENT WANT LESS IDEOLOGY ON THE FEDERAL BENCH? PAY JUDGES MORE † THOMAS J. FORR INTRODUCTION ................................................................................ 860 I. THE CRISIS ............................................................................... 862 II. THE LITERATURE ..................................................................... 866 A. Baker’s Initial Data on Pay and Ideology .......................... 866 B. Criticism and Correction .................................................. 868 III. JUDICIAL CONFIRMATION DATA ............................................... 869 A. Confirmation Process for Circuit Courts ............................ 870 B. The Methodology .............................................................. 871 C. The Data ......................................................................... 874 D. Potential Objections ......................................................... 875 1. The Presidency Objection ................................. 876 2. The “Divided Government” Objection ............. 880 E. Why the Longer Confirmation Times? ............................... 882 1. Coincidence ........................................................ 883 2. Low Quality ......................................................... 884 3. Circuit Influence ................................................ 885 4. Ideology .............................................................. 888 F. Causation ....................................................................... 891 CONCLUSION ................................................................................... 891 † J.D. Candidate, 2010, University of Pennsylvania Law School; B.A., 2007, Univer- sity of Notre Dame. Special thanks to Dominic Draye for his helpful insight and statis- tical analysis. (859) FORR FINAL PRINT REVISED.DOCX (DO NOT DELETE) 2/15/2010 3:21 PM 860 University of Pennsylvania Law Review [Vol. 158: 859 INTRODUCTION Since 1969 the real value of a federal judge’s salary has declined.1 Meanwhile, profits per partner at prominent law firms have skyrock- eted.2 Chief Justice John Roberts has highlighted this development, along with problems retaining and recruiting federal judges from the private sector, and concluded that Congress’s failure to raise judicial pay has “reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal Judiciary.”3 This Comment analyzes the crisis that Chief Justice Roberts has identified. In particular, this Comment focuses on the link between judicial pay and ideology. After marshalling data from the judicial con- firmation process over the past thirty years, this Comment finds that low judicial pay has helped create a more ideologically polarized bench. Part I explores Chief Justice Roberts’s argument that, as a result of stagnant judicial compensation, the quality and independence of the judiciary are in jeopardy.4 Part II analyzes the only empirical study to date on the link between pay and performance in the federal judi- ciary. That study, authored by Professor Scott Baker, concludes that the modern level of judicial pay has not, in any quantifiable sense, affected the quality of the judiciary.5 However, the study contains evidence that low pay may be undermining the independence of the judiciary by at- tracting more ideologically driven judges in major markets. Judges from the top five legal markets (Top Five Markets)—New York, Los An- geles, Chicago, San Francisco, and Washington, D.C.6—tend to exhibit more partisan voting patterns and citation practices.7 Thus, the study 1 See Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary, THIRD BRANCH (Admin. Office of the U.S. Courts, Wash. D.C.), Jan. 2007, at 1-2 [he- reinafter Roberts, 2006 Year-End Report], available at http://www.uscourts.gov/ttb/ 2007-01/2006/index.html (noting that the real value of a federal district judge’s salary has dropped 23.9% since 1969). 2 See Christopher Zorn et al., Working Class Judges, 88 B.U. L. REV. 829, 837 fig.1 (2008) (showing that between 1983 and 2003 average profits per partner at the fifty highest-grossing American law firms more than tripled). 3 Roberts, 2006 Year-End Report, supra note 1, at 1. 4 Id. 5 See Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. REV. 63, 66 (2008) (testing Chief Justice Roberts’s claims regarding the salary gap between the ju- diciary and the private sector by examining the effect of low judicial pay on “quantifia- ble measures of judicial performance”). 6 See id. at 89 (identifying these cities as the “top-five legal markets”). 7 See Zorn et al., supra note 2, at 834 & tbl.1 (reexamining Baker’s data and finding empirical evidence of greater partisan judicial behavior in Top Five Markets); see also Scott Baker, Refining the Judicial Salary/Judicial Performance Debate: A Response to Professors FORR FINAL PRINT REVISED.DOCX (DO NOT DELETE) 2/15/2010 3:21 PM 2010] Ideology and Judicial Pay 861 suggests that judges who, generally speaking, forgo the most income to join the bench may be more ideological than their peers.8 Part III presents new data and a model to support the view that the failure to raise judicial pay has, in major markets, created a more ideologically driven judiciary. This Comment focuses on the amount of time it takes a judicial nominee to be confirmed. Over the past thirty years, the Senate has taken significantly longer to confirm no- minees from Top Five Markets than those from smaller markets.9 In other words, the Senate takes longer to confirm the nominees who, on average, pass up the most staggering salaries to become judges.10 This finding is statistically significant.11 After controlling for other plausible explanations, this Comment concludes that the best expla- nation for the longer confirmation times is that, as a result of low judicial pay, nominees from major markets tend to be more ideologi- cal than their peers.12 One implication is clear: increasing judicial pay in major markets should diminish partisan voting on the bench.13 To ensure that our judiciary remains fair-minded and independent, Congress should swiftly pass legislation providing robust cost-of-living adjustments for judges in large cities.14 In addition, Congress should ensure that judi- Cross, Czarnezki, Henderson, Marks, and Zorn, 88 B.U. L. REV. 855, 863-64, 868 (2008) (ac- knowledging that Baker’s data reveal “partisan voting among judges in top-five markets”). 8 See Zorn et al., supra note 2, at 835 (“[L]ower judicial salaries in Top Five mar- kets strongly correlate with behavior Baker characterizes as ‘ideological’ or ‘influence- motivated.’”); id. at 839 (“In Omaha, the salary disparity between a law firm partner and a federal judge is likely to be a factor of two. But in New York City or Washington, D.C., it could easily be a tenfold gap.”). 9 See infra Section III.C (comparing confirmation times for judges from Top Five Markets and small markets). 10 See supra note 8. This Comment assumes that judges from Top Five Markets could have earned considerably more income than their counterparts from smaller markets. This assumption is solidly grounded in regional average-compensation fig- ures, see infra Section II.B, but it is not particularized to individual judges. 11 The results are statistically significant at the p ≤ 0.05 level. For a discussion of the varying levels of statistical significance and their meanings, see infra note 115. 12 See infra Sections III.D-F (providing a statistical model that, while controlling for a number of alternative explanations, still finds a statistically significant relationship between longer confirmation times and nominees from Top Five Markets). 13 See Baker, supra note 7, at 868 (acknowledging that Zorn et al.’s analysis of Bak- er’s study leads to the conclusion that “higher salaries could diminish partisan voting among judges in top-five markets”). 14 See id. (recognizing that these results may support cost-of-living increases); see also KEVIN M. SCOTT, CONG. RESEARCH SERV., JUDICIAL SALARY 30 (2007) (“Federal judges have, since 1891, been paid the same salaries regardless of the location of their chambers or residences.”). FORR FINAL PRINT REVISED.DOCX (DO NOT DELETE) 2/15/2010 3:21 PM 862 University of Pennsylvania Law Review [Vol. 158: 859 cial pay keeps pace with inflation.15 Finally, in view of the demonstra- ble effects of low judicial salaries, Congress should seriously consider Chief Justice Roberts’s pleas on behalf of his colleagues for a judicial pay raise. I. THE CRISIS Chief Justice Roberts regularly emphasizes the need for an in- crease in judicial pay.16 However, he offered his most forceful and comprehensive argument in his 2006 Year-End Report on the Federal Judi- ciary. In this report, the Chief Justice focused on just one issue: Con- gress’s perennial failure to raise judicial pay.17 According to Chief Jus- tice Roberts, this issue has developed into a “constitutional crisis” that “threatens to undermine the strength and independence of the feder- al Judiciary.”18 Chief Justice Roberts begins by pointing to the decline in federal judicial salaries. From 1969 to 2006, the average U.S. worker’s wage, adjusted for inflation, rose 17.8%.19 During that same period, infla- tion-adjusted federal judicial pay declined 23.9%—leaving a 41.7% gap.20 Indeed, in 1969, a federal district judge earned 21% more than 15 See Chief Justice John G.
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