Judicial Salaries

George Will complains that current salaries are resulting in a Bargain Basement Judiciary. To advance this argument, Will presents some misleading claims, but no actual numbers. For example,

The denial of annual increases, Roberts wrote, "has left federal trial judges - the backbone of our system of justice - earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located." The cost of rectifying this would be less than .004 percent of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary -- and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector -- from the practicing bar -- and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.

Roberts' claim predates a probable, 32% pay increase for the federal judiciary, almost certain to pass in the Senate. Assuming the House approves, a federal District Court judge will be paid $218,000.00, and a federal appellate judge will receive $231,000.00. Given that the House previously approved similar figures, there's every reason to believe that these increases will take effect. That, I believe is more than four times the median household income for the nation as a whole.

The comparison of judicial salaries to salaries from the highest-paying law firms in the nation? Sure, you're going to be able to argue that associates at those firms earn amounts comparable to the salaries of federal judges. And well in excess of state judges. And comparable to or in excess of state governors and legislators. Or U.S. Senators and Members of Congress. Or the Vice President. Or members of the Cabinet. Or mayors. Or law professors. Or state and federal prosecutors. Well, you get the idea.*

Also, when a lawyer is approached about becoming a federal judge, he does not weigh the offer against a starting salary at a major firm. Either he's in the firm, already making far more money than an associate, or he's in a different type of practice and is quite possibly making far less than the judicial salary. That's the essence of Will's complaint,

Fifty years ago, about 65 percent of the federal judiciary came from the private sector - from the practicing bar - and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.

Will provides no evidence that the quality of the judiciary has declined, or that there is a shortage of lawyers willing to take appointments to the bench. All of the evidence I see is to the contrary - we have a lot of highly qualified federal judges, and ample numbers of lawyers who would be happy to get life tenure as a federal judge. As for the idea of judges fleeing from the bench to get bigger salaries, it isn't happening. Granted, some do leave, but we're simply not going to increase judicial salaries to the point that a judge won't be tempted to earn $600,000 - $800,000 or more for walking in the door of a private firm. (If a federal judge wouldn't command that salary when leaving the bench, with the cachet of having a former federal judge on a law firm's résumé, it's safe to assume that the same judge would not be deterred from the judiciary by only making $218,000.00 to start.

Will's other concern appears to be that Republican presidents are appointing too many career civil servants to the federal judiciary, resulting in excessive bureaucracy. That's a creative argument, but one he doesn't back with evidence. Instead, he invokes his usual, tired anti-liberal invective:

Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law -- into every facet of life.

That's right, folks. It's the fault of liberals that the judiciary has grown under Reagan, Bush I and Bush II, and they've been advancing their liberal policies by filling the federal bench with liberal bureaucrats. More than sixty percent of federal judges are Republican appointees.

It's insipid for Will to pretend that the number of civil servants who become judges has to do with some sort of "bureaucratization" of the judiciary, or is an evil left-wing plot. Take a look at one of the leading examples of a federal judge who qualified for his position through a careful series of civil service jobs - Clarence Thomas. The civil service provides many opportunities for an administration to position and advance people on the basis of their ideology, without regard for whether those candidates would have a skill set that would allow them to advance in private practice. Some of those people might do very well in private practice, but have deliberately chosen a slower paced life with more rewarding work, great benefits and paid vacations. A federal judgeship has all of those benefits, plus a lot of prestige and a fantastic pension. For all of Chief Justice Roberts' whining about judicial salaries, and that of Chief Justice Rehnquist before him, is there any sign that either of them ever considered resigning their positions to earn more elsewhere?

Even if you choose to overlook the dominance of Republican appointees, it's also silly to pretend that the federal bench has become liberal. State courts are often hostile enough to plaintiffs, but when presented with the opportunity to do so it is the defense that will typically leap at the opportunity to have a case removed to federal court. When "tort reform" groups propose federalizing various claims, such as class action cases, it's not because they believe the federal courts will present them with a disadvantage.

There's also a legitimate question as to whether the highest paying law firms are the best source of federal judges. Will assumes so, and attributes the diminishing number of practicing lawyers who join the bench as evidence that G.W. Bush is appointing substandard judges. To the extent that any substandard judges reach the federal bench, it's the result of patronage, not a dearth of qualified candidates. The greater concern for Will, the one he won't admit, is that he is interested in judicial ideology, not qualification. And no, it's not that he opposes "activist judges" - he wants judges who will actively advance his preferred political agenda.
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Addendum: In addition to the fact that the starting salaries at top law firms are a poor point of comparison, the fact is that we're not going to compensate judges at a level comparable to the highest paying legal jobs in the country, any more than we're going to compensate cabinet members like CEO's. Will implicitly acknowledges this when he speaks of elite firm starting salaries, without choking out specific dollar figures for those neophyte lawyers. You would be hard pressed to find a partner at one of those firms earning less than $500K/year. Most of the people Will claims to want to entice to the bench are likely earning well into the seven figure range.

Race, Patriotism, and Obama

Dan Larison presents an analysis, inspired in part by a thoughtful bloggingheads piece, on the racial issues implicated by Obama's church, pastor and speech.

Meanwhile, middle- and working-class white (and probably other) audiences heard this, remembered the anti-racist catechisms they had been taught for as long as they could remember and understood that the proper, approved reaction was to shake their heads and boo. McWhorter makes a similar observation. Now that anti-racism has captured the minds of so many of these people, now that the conditioning has had its intended effect, observers sympathetic to Obama are dismayed that Obama’s nuanced effort to explain (or, as the critics have it, explain away) racially-charged and potentially racialist rhetoric fell on deaf ears. Yet this shouldn’t surprise anyone–if the speech fell on deaf ears, it was the elites who deafened them years before with a single, simple imperative: “Don’t pay attention to race, except when we tell you to!”

I believe Larison misses the mark here, not so much because there aren't "elites" of the type he mentions, but because those "elites" don't have the ear of the "middle- and working-class white (and probably other) audiences" he describes. If it did, those audiences would have voted down anti-gay marriage, anti-domestic partnership ballot initiatives. They would have rejected ballot initiatives ending affirmative action. Etc. That audience is responding to other factors, discussed in the bloggingheads piece, not the least of which are their own concerns about job security and the future, and their own experiences with the effects of poverty.

Larison is correct that society has largely learned that it is not acceptable to make public, racist announcements, and that the response that our popular culture now dictates is to boo. He's even correct that this culture change has been a top-down phenomenon, driven by "elites" of various types. But I think that he's overlooking the fundamental reason why Rev. Wright's statements resonate in a bad way - and this is discussed in the bloggingheads piece - it's because people are not willing to accept blame for historic wrongs, nor are they willing to absorb a penalty (real or perceived) to correct those wrongs when they see similar problems within their own communities for which no similar remedy is offered.

Obama could address these issues in a post-racial way, and maybe he still will. If you were to ask them what causes patterns of poverty and crime within their communities, may may demonstrate and external locus of responsibility (i.e., "blame others") similar to that of Rev. Wright. But few are going to go into a diatribe about how they're being held back by their race, or by affirmative action, and even that group (perhaps especially that group) is not receptive to the notion that there is something special about race that necessitates race-based remedies to social ills.

What is perhaps more interesting is that the willing tools of the Republican attack machine aren't focusing on race. They're focusing on patriotism. This isn't a first - recall the earlier attacks to besmirch Obama's patriotism through comments made by his wife. Then it was the false claim that he didn't have his hand over his heart during the Pledge of Allegiance, and even that he wouldn't say the Pledge. And let's not forget the flag pin smear, which was even propagated by tools who don't even wear flag pins.

Perhaps it remains too hard, as suggested by Peggy Noonan, to attack Obama directly on issues of race? Noonan, as I read the piece, was trying to drive a wedge between the Obama's and working class whites - but she still chose to couch her attack in terms of patriotism ("Some of them were raised by a TV and a microwave and love our country anyway, every day.") In the present context, see, e.g., Gerson ("Obama's excellent and important speech on race in America did little to address his strange tolerance for the anti-Americanism of his spiritual mentor"); Kristol ("This doesn’t mean that Obama agrees with Wright’s thoroughgoing and conspiracy-heavy anti-Americanism"); Chris LaCivita (of Swift Boat fame), ("'You don’t have to say that he’s unpatriotic, you don’t question his patriotism,' he added. 'Because I guaran-damn-tee you that with that footage you don’t have to say it.'")

It's also interesting to me how Wright is deemed unpatriotic ("God damn America"), but a John Hagee ("America is under the curse of God" - i.e., we're damned) is not - they're both arguing that America deserves to be damned by God, but Hagee is adding that we are damned - should Wright have used the passive voice? Or how a conspiracy theory that blames the government for spreading AIDS or drugs is unacceptable, but a conspiracy theory blaming the government for the JFK assassination can be raised in pretty much any context (although you can expect to get disagreement and inspire some eyerolls). Or how other nutty theories about the spread of AIDS (e.g., Falwell's "AIDS is God's punishment", or Hagee's "AIDS began in African prisons, where thousands of men ... turned to perverted sex") do not trigger condemnation, apparently because they omit mention of the U.S. government. Or how conspiracy theories can swirl about the government's role in Waco, Ruby Ridge, and 9/11 even in the same circles that deem Wright's "our policies brought it on us" philosophy to be unacceptable. Or why it is acceptable to blame 9/11 on "the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way", while remaining in the warm embrace of the Republican Party. But sometimes we have to accept the world the way it is.

Perhaps the focus on patriotism over race boils down to this: It's also a hard sell to argue to blue collar America that racism doesn't exist, even if many believe its effects are minor or are more than counter-balanced by "reverse discrimination", because they know better.

Lessons On How To Behave In Church

What do you do if your church leader makes comments with which you take issue? Do you sit through a sermon, and perhaps engage in a quiet discussion with your minister afterward? Ignore it? Charles Krauthammer tells us, that would be wrong.

So I guess we're supposed to follow the Krauthammer model?

About three years ago, I saw Krauthammer flip out in synagogue on Yom Kippur. The rabbi had offered some timid endorsement of peace — peace essentially on Israel's terms — but peace anyway. Krauthammer went nuts. He actually started bellowing at the rabbi, from his wheel chair in the aisle. People tried to "shush" him. It was, after all, the holiest day of the year. But Krauthammer kept howling until the rabbi apologized. The man is as arrogant as he is thuggish. Who screams at the rabbi at services? For advocating peace?

I don't dispute that there are valid questions about when and how to respond to outrageous statements by your minister, but I don't think Krauthammer has any room to lecture.

"Heck Of A Job, Gersie"

That is, if I were to guess at the probable dinner conversation.

Michael Gerson's Open Hypocrisy

Let's take a look at some Gerson quotes from a Fox News interview by Megyn Kelly.

But the reality is that Wright is not a representative of the African-American community, he's an extremist. He's talked about AIDS being, you know, a plot by the American government to destroy people of color, you know, blamed America for 9/11. These things are not the mainstream of the African-American tradition. He's not a symbol of these things, he's an extremist.

Now let's take a look at some of the Republican ministers who, in Gerson's mind, are free to endorse and embrace Republican candidates - and who Republican candidates need not repudiate. On God punishing us for our sins:

• Pat Robertson: "I would warn Orlando that you're right in the way of some serious hurricanes, and I don't think I'd be waving those [gay pride] flags in God's face if I were you. This is not a message of hate - this is a message of redemption. But a condition like this will bring about the destruction of your nation. It'll bring about terrorist bombs. It'll bring earthquakes, tornadoes, and possibly a meteor."
• John Hagee: "All hurricanes are acts of God, because God controls the heavens. I believe that New Orleans had a level of sin that was offensive to God, and they are - were recipients of the judgment of God for that. The newspaper carried the story in our local area that was not carried nationally that there was to be a homosexual parade there on the Monday that the Katrina came. And the promise of that parade was that it was going to reach a level of sexuality never demonstrated before in any of the other Gay Pride parades. So I believe that the judgment of God is a very real thing."
• Jerry Falwell: "I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way -- all of them who have tried to secularize America - I point the finger in their face and say 'you helped this [9/11] happen.'"
• John Hagee: "As a nation, America is under the curse of God."

On AIDS:

• Jerry Falwell: "AIDS is not just God's punishment for homosexuals; it is God's punishment for the society that tolerates homosexuals."
• John Hagee: "AIDS began in African prisons, where thousands of men, deprived of normal sex, turned to perverted sex. From the infection created by this perverted sex came the infection that birthed AIDS."

On natural disasters and terrorist acts, the distinction between Wright and the extremists Gerson deems acceptable appears to be that it is unacceptable to suggest that government policy is sinful and might inspire vengeful response, but it is acceptable to argue that God will smite people en masse because some of their neighbors engage in acts the minister (and probably Gerson) regard as sinful.

And for AIDS, it's not acceptable to say that the U.S. Government created AIDS, but it is acceptable to say that it was created by God as a plague on homosexuals and those who tolerate them. To me, you know, the former position sounds silly and ill-informed, and the latter sounds like... blasphemy. And it is apparently acceptable to assert that AIDS arose out of "perverted sex" in "African prisons", so Gerson appears to have no problem with ministers taking positions that are scientifically ludicrous and arguably racist... against Africans.

Well, uh, I guess I would say that somebody who believes the United States government is guilty of genocide is not a fierce critic. He's a dangerous man.

A dangerous man....

• Pat Robertson (to Joel Mowbray): "I read your book. When you get through, you say, "If I could just get a nuclear device inside Foggy Bottom, I think that's the answer." I mean, you get through this, and you say, "We've got to blow that thing up."
• Pat Robertson: "Just like what Nazi Germany did to the Jews, so liberal America is now doing to the evangelical Christians. It's no different. It is the same thing. It is happening all over again. It is the Democratic Congress, the liberal-based media and the homosexuals who want to destroy the Christians. Wholesale abuse and discrimination and the worst bigotry directed toward any group in America today. More terrible than anything suffered by any minority in history."

So it's acceptable to speak of committing a terrorist act to blow up the State Department, or to suggest that the U.S. Government is engaged in a worse genocide than the Holocaust, but... I'm having trouble finding even a farcical point of distinction.

Um, and this is a, I think a genuine problem going forward. It undermines Obama's appeal to conservatives. It undermines his appeal to Jews because of this relationship with, of his Pastor's with Farrakan.

Ah yes, lest we forget the warm feelings emanating toward Jews from Gerson's acceptable extremists (and one who is considered not so extremist)....

• John Hagee: "No one could see the horror of the Holocaust coming, but the force and fear of Hitler's Nazis drove the Jewish people back to the only home God ever intended for the Jews to have - Israel."
• Jerry Falwell: "The Jews are returning to their land of unbelief. They are spiritually blind and desperately in need of their Messiah and Savior."
• Billy Graham: " I go and I keep friends with [Abe] Rosenthal at the New York Times and people of that sort, you know. And all -- I mean, not all the Jews, but a lot of the Jews are great friends of mine, they swarm around me and are friendly to me because they know that I'm friendly with Israel. But they don't know how I really feel about what they are doing to this country. And I have no power, no way to handle them, but I would stand up if under proper circumstances."
• John Hagee: "How utterly repulsive, insulting, and heartbreaking to God for His chosen people to credit idols with bringing blessings He had showered upon the chosen people. Their own rebellion had birthed the seed of anti-Semitism that would arise and bring destruction to them for centuries to come.... it rises from the judgment of God upon his rebellious chosen people."

I know I'm supposed to buy into the notion that ministers who believe in the "End of Days", and support a vision whereby all of the world's Jews move to Israel where they ultimately either convert to Christianity or perish in the sea of fire, are somehow Jew-friendly. But....

And it really does undermine his basic message that words of healing matter. Because these are words of hatred that he has been, you know, associated with now.

In excusing every Republican affiliation with religious extremism, Gerson makes plain that he has no genuine problem with mere "words of hatred". His goal here is not to merely depict Wright's statements as "words of hatred", but as "words of hatred" from a "scary black man". Gerson knows that to achieve his goals, that last part is all that matters.

Running An Effective Smear Campaign

With factions of the Republican Party giddy with the idea of smearing Barack Obama on race issues, I thought I should remind them how to run an effective smear campaign.

"It's Different When We Do It"

"Michael Gerson is not a man who is stupid - but he chose to walk with a man who is."

No, wait, I got that first part wrong.

The better analogy is this: What if a Republican presidential candidate spent years in the pew of a theonomist church - a fanatical fragment of Protestantism that teaches the modern political validity of ancient Hebrew law?

No, that wouldn't be it, because we know the church Obama attended. Perhaps Gerson has never heard of the United Church of Christ?

I realize why Gerson wants to distinguish this from McCain's embrace of Hagee (or Huckabee's attendance of Hagee's services), or the various other ways Republican candidates and Presidents have sucked up to offensive religious extremists. Why he wants to argue, "They were only making kissy-face with the leaders, not attending their services. They were lying about their religious convictions to get votes - and it's morally superior to lie about your belief in extreme religious doctrine than it is to attend a church where the minister sometimes says hateful things, even though you disagree with the minister." As with Gerson's defense of infidelity, we're entering the theater of the absurd.

When Gerson tries to argue that Republicans should be excused excused for lying about their religious beliefs in order to suck up to religious extremists, he also states,

Yes, but they didn't financially support his ministry and sit directly under his teaching for decades.

Can he truly believe that religious extremists embraced by Republican politicians do not profit from the association? That the open embrace of their theology and person doesn't augment their fame, their power, their authority, and ultimately their fortune? That Bob Jones University only wants Presidents and politicians to speak on its premises because it thinks it has the nicest auditorium in the country? That Hagee and similar religious leaders have no self-interest in injecting themselves into national politics?

How charmingly naive.