Love's Labor's Lost - Judicial Tenure among Federal Court Judges: 1945-2000
Love's Labor's Lost? Judicial Tenure
0 Copyright © 2003 California Law Review, Inc. California Law Review, Inc. (CLR) is a California t Assistant Professor, Northwestern University School of Law, Northwestern University Department of Political Science (by courtesy). B.A., Yale University; J.D., Ph.D. (Political Science), Stanford University. I am grateful for the generous support of Northwestern University School of Law in making this research possible. A special thanks to Adam Waskowski and Brian Doughtery for their research assistance and Pegeen Bassett for her library reference support. I am indebted to Steve Saltzgiver at the Federal Judicial Center and Sheldon Goldman for providing data. This Article , USA
1 benefited greatly from the comments of Richard Brooks, Tom DeLeire, Tracey George, Nancy King , Helen Levy, Tom Merrill, Richard Posner, Robert Rasmussen, Jim Speta, Robert Sitkoff, Kent Syverud, Emerson Tiller, Robert Weisberg, Christopher Yoo, and participants at the 2002 Law &
2 Note: Data provided by Sheldon Goldman, Department of Political Science, University of Massachusetts , USA
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V. Is Compensation Affecting Tenure? ........................... ..................... 1055
Society Conference and the 2003 Legal Theory Workshop at Vanderbilt University Law School. Any
remaining errors are my own.
Love's Labor's Lost? Judicial Tenure
Among Federal Court Judges:
1945-2000
Albert Yoon
Jurists and legal scholars have long decried the diminishing real
salariesoffederaljudges, claimingthat this decline has adversely affected
the willingness offederaljudges to remain on the bench. Using
dataprovided by the Administrative Office of the United States Courts, this Article
analyzes the tenure trends offederal judges who retiredfrom the bench
during 1945-2000. Using time-series regression analysis, this Article
shows that, contrary to these claims, tenure trends remainedfairly stable
over this periodfor both district and circuit courts. Indeed, the only
observable trends were towards longer tenure. The data reveals, however,
that recent judicial appointees are wealthier than their predecessors,
which may reflect apossible selection effect in members of the bar willing
to join the federal bench. Moreover, while judicial salaries have
diminished, expenditureswithin thefederaljudiciaryare growing at a geometric
rate,suggestingthatjudges may enjoy increasingnonsalarybenefits.
INTRODUCTION
"It's a privilege to do this job.'
U.S. Supreme Court Justice Stephen G. Breyer,
describing his experience on the bench.
"It's not the sort of situation you want.... I went out and got a job
to take care of my grandchildren."2
Edward B. Davis, former Chief Judge of the Southern
District of Florida, describing his experience on the
bench and why he left.
For most members of the legal profession, becoming a federal judge
signifies the culmination of a legal career. After years of distinguished
service, typically in private practice, government, or a state judgeship,
occasionally an attorney is recognized by a presidential nomination for a
federal judgeship, and, in most cases, Senate confirmation. A federal
judgeship offers the opportunity to serve the public, directly shape the law,
and develop the minds of subsequent generations of attorneys through the
mentorship of judicial clerks. These benefits are accompanied by lifetime
tenure and respect from the legal community. What could be the
detraction?
For some members of the federal judiciary, however, most notably
U.S. Supreme Court Chief Justice William H. Rehnquist, dissatisfaction is
brewing and has been for some time.3 Federal judges now hear more cases
annually on average than they did ten years ago,4 and their annual salaries
adjusted for inflation have steadily declined over that period. Moreover,
Chief Justice Rehnquist contends that this diminution in real salary is
prompting federal judges to leave the bench in unprecedented rates.' Other
judges6 and government officials7 have echoed this claim. Despite the
salience of this issue for at least the last thirty years, there has been a
surprising scarcity of scholarship exploring judicial tenure and, specifically, the
factors that influence the length of time a federal judge serves on the
bench.8
This Article seeks to accomplish two goals. First, it explores whether
the beliefs of Chief Justice Rehnquist and other critics of the causal
connection between federal judicial salaries and judicial departure are
empirically valid. Second, and more importantly, it examines the trends in
judicial service among lower federal court judges over the past half
century, focusing on the factors that influence the length of a federal judge's
service prior to retirement. This empirical inquiry is important,
independent of the findings: if Chief Justice Rehnquist's claims are correct, then the
results may further motivate Congress and the public to accommodate the
judges' request for salary increases; if the claims prove inco (...truncated)