Opinion

Alison Frankel

Scalia: Judiciary suffers when private lawyers stay off the bench

By Alison Frankel
September 19, 2012

If there’s one theme that ran through U.S. Supreme Court Justice Antonin Scalia’s interview Monday with Reuters Editor-in-Chief Stephen Adler, it’s that words matter. Time and time again, Scalia and Bryan Garner, the co-author with Scalia of the book Reading Law: The Interpretation of Legal Texts, endorsed originalism and textualism, doctrines that demand judges stick to interpreting the words in front of them rather than attempting to divine legislative intent or (heaven forbid!) imposing their own policy agendas. According to Garner and Scalia, textualism is a sure-footed guide, regardless of where it leads.

“A textualist will frequently end up with — an uncomfortable result. With a result that feels bad,” Garner said, according to a transcript of the interview, which he also participated in. “That’s the funny thing. The judges who are not textualists will essentially always do what they consider to be the better policy. But textualists will frequently decide cases that they think, ‘Wow, it’s a shame I have to do this.’”

If words alone must determine outcome, let’s take a look at what Scalia had to say when Adler asked a question posed by an audience member who wanted to hear the justice’s opinion on term limits for judges. Scalia called term limits “a solution without a problem,” arguing that, in his experience, William Douglas is the only justice who stayed on the Supreme Court too long. The question also led Scalia to muse, however, on how judicial salaries affect the composition of the federal judiciary. “The salaries of federal judges are so low that you’re not getting the best lawyers anyway,” Scalia said. “You’re [not] getting the, the best private lawyers. You may be getting good people, but they’re people who have been an assistant U.S. attorney, then they’re … you know, a minor state judge, then a bankruptcy judge, and then a magistrate judge. And, you know, they finally get appointed to a federal district court. A huge percentage of our federal judges now have never practiced law privately.”

I heard (and read) Scalia’s comments as a slap at longtime public servants who ascend to the federal bench, a group that, in New York’s federal trial courts, includes such well-regarded judges as John Gleeson and Barbara Jones. Scalia creates a dichotomy between them and private practitioners and suggests that while career public servants may be “good,” they’re not “the best lawyers.” (I called Gleeson and Jones, but neither would comment on Scalia’s remark.) That seemed to me to be an unfair generalization — I’m sure we all know plenty of brilliant federal prosecutors and state court judges, and just as many dim-bulb private practitioners — and a distressing vote of no confidence in the federal judiciary by one of its most prominent members.

But when I called around to speak with some current and retired federal judges about Scalia’s comments, three of the four who spoke on the record said that while the justice’s words may not have been artful, he has identified a real issue: diversity on the federal bench. “It is a significant financial sacrifice to take a judicial position,” said Vaughn Walker, a retired former U.S. chief judge who now has an arbitration business in San Francisco. “The judiciary is poorer for having fewer lawyers who come from the private sector.” A big percentage of the cases a federal trial judge oversees, Walker said, involve business disputes. Judges who have represented clients in such disputes bring valuable experience to the bench. “I would not say that lawyers coming out of government practice are not as smart as lawyers in private practice,” said Walker. “But you learn things from having done things.”

Nancy Gertner, who retired from the federal bench in Boston to join the Harvard Law School faculty in 2011, said that judicial salaries restrict the pool of candidates for federal judgeships. A onetime civil rights lawyer, Gertner put her kids through college while she was on the bench. “It decimated us,” she said. With such a gap between what smart lawyers can make in private practice and what federal judges are paid, Gertner said, the only people who can afford to be judges are the independently wealthy, those who have already made a pile of money in private practice or public servants who have been angling for a judgeship throughout their careers. “It’s an issue of diversity of experience,” Gertner said.

That diversity matters: Lawyers who come to the bench without a lot of money or with family obligations think differently about such issues as appropriate damages and legal fees than wealthier colleagues do, she said. “We’re making judgments about what reasonable people would do,” said Gertner, who wrote last year about stepping off the bench for economic reasons. “A diversity of experience, a diversity of economic backgrounds, lends different perspective.” (According to the Administrative Office of the U.S. Courts, it’s increasingly common for federal judges to resign for economic reasons, even sacrificing their federal pension to take higher-paying jobs in the private sector. Of the 10 judges who left the bench in 2011, five went into private practice and three took law school jobs that will permit them to do other work as well. Seven federal judges have resigned so far this year.)

“I find myself in interesting company with Justice Scalia,” said Gertner, who agreed with Scalia that there’s danger in a judiciary with a disproportionately high percentage of career public servants, since those who consider a federal judgeship the last stop of a public service career may deliberately avoid controversy on their way up the ladder for fear of compromising their future. Scalia isn’t the first member of the Supreme Court to make that argument; Justice Stephen Breyer, in a 2007 appearance before the House of Representatives Judiciary Committee, said pretty much the same thing that Scalia said Monday night at Reuters. “It shouldn’t be overwhelmingly people who followed the professional judicial career path,” Breyer told Congress. “I mean, there have been some great judges who have come out of that path. But it used to be that those professionals — state court, magistrates, and so forth — it used to be they accounted for about 20 percent of the judiciary. Today it is more than half. Now, that isn’t, I think, what you want. What you want is an open, diverse judiciary.”

No judge I talked to thinks judicial salaries are high enough. They all agreed with Chief Justice John Roberts, who, before the economic crisis, regularly used the bully pulpit of his annual report to Congress on the state of the federal courts to advocate for pay raises. (As of 2010, according to the Administrative Office’s salary data, district court judges were paid $174,000, the same as congressional salaries; appellate judges made $184,500; associate justices, $213,900; and the chief justice, $223,500.)

There is, however, a school of thought that the judiciary is still attracting eminently talented lawyers. Intriguingly, the leading proponent of that view is probably 7th Circuit Court of Appeals Judge Richard Posner, who disputed Roberts’s 2007 call for a judicial raise at his Becker-Posner blog and has since advised law professors, including his son Eric Posner, who have researched the question of whether judges are underpaid. In case you’ve been hiding under a rock, Posner and Scalia differ on more than just judicial salaries; on Monday night, Scalia said Posner had “lied” in a New Republic review of Scalia’s book.

Posner’s not the only sitting judge, however, who believes the federal bench is still stocked with talented lawyers of varying backgrounds. U.S. Senior District Judge Jed Rakoff pointed to the diversity of experience in his recently installed colleagues in federal court in New York, most of whom have both public service and private practice on their resumes. “I agree with Justice Scalia that low judicial salaries have narrowed substantially the pool of available candidates for the federal bench, but I disagree with him as to how that has impacted the pool in terms of experience and background,” said Rakoff. “Fortunately, the quality of the federal judiciary at all levels has remained extraordinarily high.”

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