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Thursday, May 11, 2006

Luttig's Seat: My Bid in the Reverse Auction

The Washington Post reports what many suspected was obvious -- that the departure of Judge J. Michael Luttig from the Fourth Circuit was basically financially motivated:

Friends of Luttig said yesterday that the financial lure of the Boeing job and the greater ability to pay for his children's college education -- Luttig has a 14-year-old daughter and a 10-year-old son -- were key to his resignation.

The article notes that Luttig's 2006 salary is $171,800.  Sure, his Boeing salary likely will be many times higher.  But isn't a $171,800 salary (which he has been earning for the past 15 years, subject to small annual federal pay increases) enough to pay for college for his two kids -- who, at ages 14 and 10, presumably still have a few more years left before the tuition bills start arriving?  Can someone point me to the folk song about the guy who couldn't afford college for his two young'uns because he earned only $3.4 million over 20 years as a high-level judge?  Cf. Bon Jovi, Living on a Prayer:

He's down on his luck -
It's tough, so tough.
Gina works the diner all day
working for her man
She brings home her pay
for love, for love.

Ok, maybe I'm being too hard on the dude.  College ain't cheap, and given Luttig's precocious ascension to the bench at 37, maybe at 14 and 10 his kids are about ready to start at Yale.

Regardless, I do not have Luttig's expenses, and I'm a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I'll do the job for just $170,800, which means a $1,000 savings for the American people!

Look, Mr. President, I know it sounds crass to start a reverse auction for federal judgeships.  But if judges can start paying capitalist hardball in their employment negotiations, why can't you?  Luttig was a judicial trendsetter, and the last thing you need is for him to start giving other judges ideas.  You need to send them a message: You ingrates don't like your $171.8?  Well, I can get me some cheap labor from legal academia. How 'bout them apples?  You can call it a "judicial guest worker" program, President Bush.  No need to pay me for this idea, incidentally -- this one is on the house.

Posted by Scott on May 11, 2006 at 11:24 AM | Permalink

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Ha! I'll do the job for $120k per year (over $50k savings!) and forgiveness of my Federal student loans. Oh yeah, and a deferment until I actually graduate and pass the bar. :)

I don't think you have to worry about Luttig setting any trends. There aren't enough cush GC jobs out there to drain the Federal bench.

Posted by: Dave! | May 11, 2006 11:44:03 AM

I agree. Entirely. The idea that a Federal judge is undercompensated for the job they do cannot be taken seriously; quite aside from the intrinsic appeal of the job itself, the salary is four times the average American wage, and comes with the kind of job security that a lot of people dream of.

Go visit Newton, IA, and tell those Maytag workers who have just been laid off, how tough the Federal judges have it. Go to any city in the rust belt and explain how $170,000 isn't much to live on. Call the ambulance in advance.

Posted by: Simon | May 11, 2006 12:38:43 PM

Outsource the job to Bangalore for $.75/hour. They win.

Posted by: alkali | May 11, 2006 12:59:19 PM

Note that Scott does not argue that federal judges are undercompensated for the work they do. Whether they are undercompensated or not has nothing, except perhaps in a moral sense, to do with the wages formerly paid to the Maytag workers or currently paid to workers in the rust belt. It has to do with whether the salary level is set high enough to attract and retain qualified people, given the limited supply of potential judicial office-holders. If the supply of potential judges were far, far smaller, and we decided that a half-million dollar salary was needed to fill those positions well, I don't think one could argue that such a salary was unjust, Maytage workers or no. Immoral, perhaps, but not unjust. (Although perhaps Simon is actually arguing that the problem lies on the demand side, and that we should simply be eliminating lots of federal judicial positions.)

Scott actually makes the more interesting, if puckish, argument that there is an ample supply of potential judges out there, in the legal academy, and that we would be more than happy to underbid the current judicial office-holders and still realize a salary increase. But, Scott, if I may ask a question with equal puckishness, what basis do you have for assuming that legal academics are *qualified* to hold such positions? Do we, as a class, really possess the kinds of qualities and skills one should want in a judge?

Posted by: Paul Horwitz | May 11, 2006 1:01:00 PM

I should have said "overcompensated" in my first two sentences. Apologies.

Posted by: Paul Horwitz | May 11, 2006 1:02:25 PM

Paul -- A fair point. I'm not saying I and many other academics are qualified; my inspiration was Lorne Michaels's 1970s public offer of $1000 to the Beatles to get back together to perform a song on Saturday Night Live.

But I do think it's clear that for every federal appellate judge opening, there is a glut of qualified candidates. Some academics, some law firm partners (but see Harriet Miers), some prosecutors, some legal aid lawyers, etc.... In any number of fields of legal employ, there are folks with the requisite talent and background.

As for academics in particular, I think it bears mention that a number of profssors appointed judges have done quite well at the job; offhand, I can think of the U.Chi. folks popularing the 7th Circuit, Judge McConnell on the 10th Circuit, Douglas Ginsburg on the D.C. Circuit, Judge Guido Calabresi on the 2nd Circuit, and Judge Lynch on the S.D.N.Y. district court. Of course, my nomination of myself as the "cheap labor alternative" is in no way a suggestion that I play at the level of those folks, many of whom I worship with burnt offerings regularly.

Posted by: Scott Moss | May 11, 2006 1:11:49 PM

Paul,
I'm not suggesting that they are OVERCOMPENSATED, my point is only that the argument that they are UNDERCOMPENSATED - which Luttig implicitly makes by leaving for a more lucrative position, and which many have explicitly made in response to his departure - is ridiculous. Can a lawyer in private practise make more money than a judge? Sure; do they have the same job security? No. But do we really want judges who see it as a paycheck?

Public service should involve sacrifice. I don't want my President paid as much as the Chief Executive of Boeing; I don't want my Congressman to make as much money as he could make sitting on the board of Goldman Sachs instead of the Agriculture committee. I want public service to be service, not an opportunity to get rich. I really find it hard to believe that it is so hard to attract talent to these positions without paying what these people COULD be making, speculatively, rather than a wage that is by any reasonable standards generous. In what possible universe is being a Federal Judge not extremely attractive to the best and brighest law students already?

Posted by: Simon | May 11, 2006 1:17:17 PM

No disagreement with you, Scott. The only reason I chimed in was because I wanted to disaggregate the kinds of qualities we seek in law professors and those we seek in judges. We might prize creativity, specialized skills, and an ability to second-guess problems from every angle in law professors, for instance, and prize organization, efficiency, and decisiveness (which may be more important than being right) in judges. Of course, it's possible that those qualities may overlap in the same person, whether the person is a judge or academic or both. But they may not. Even if we assume that law professors are generally "smart" at the law, we may not value smartness as highly in judges, relative to other qualities. "The best lawyer," "the best legal academic," and "the best judge" are all decidedly not synonymous phrases. Not that you disagreed with any of this, although you may. It was just an opportune moment to make the point.

Posted by: Paul Horwitz | May 11, 2006 1:26:03 PM

To be fair, Professor Moss, you should also put your own job up for reverse auction. I'm sure your dean would approve.

Posted by: Geoff | May 11, 2006 1:54:22 PM

Hah! Don't try to pull that "take my point to its logical conclusion" trick on me; I reserve the right to reject any logical extensions of my arguments that I dislike.

I knew this blogging thing would come to no good end.

Posted by: Scott Moss | May 11, 2006 1:57:33 PM

Public service should involve sacrifice.

Henceforth, judges shall make minimum wage, and have a leg amputated upon taking the oath of office.

(Seriously, what is the limiting principle here? Would making, say, 40% of what they could make in the private sector -- which would constitute a substantial raise for most judges -- really be not enough of a sacrifice?)

Posted by: alkali | May 11, 2006 2:04:42 PM

Alkali - why the need for a limiting principle? No one is suggesting that their pay be cut, only that it need not be raised at this time.

Posted by: Simon | May 11, 2006 2:13:35 PM

Paul: one has to wonder what the qualifications for a federal judge are. I mean, how superior to the average mass of lawyers does one have to be before one is a qualified federal judge? Judges have clerks and, more importantly in the adversary system, parties to do the actual work... all they've got to do is pick a side and sign their name to the arguments presented by someone else.

In that vein, I'm going to offer a preemptive bid of $90,000. :-)

Posted by: Paul Gowder | May 11, 2006 2:36:20 PM

Tom Ridge gave much the same explination when he stepped down from the head of the department of homeland security. College is expensive, of course, but this is a pretty sad sounding reason given that these folks make much more than the average person trying to send their kids to college. I can't say if fault Luttig for stepping down- if he's tired of the job for whatever reason that's fine with me. But the "pay for college" line is one that should get 0 sympathy.

Posted by: Matt | May 11, 2006 2:41:55 PM

I don't think the point is about under/overcompensation at all. Luttig doesn't seem to be saying "I'm leaving my job because I'm not getting pay that's commensurate to my work", he's saying "I'm leaving my job because I don't make enough money to pay for the things I want in life." He may even feel overpaid for his work as a federal judge, but if $171k doesn't allow him to purchase the amenities he wants/needs, he's going to either have to adjust his preferences or take a higher-paying job (and he's clearly chosen the latter route).

That said, I'm with Scott as far as the skepticism about this rationale goes. It does seem implausible that making that much money prevents one from having their kids go to college, what with financial aid grants/loans and the possibility of going to high-level state schools depending on where you live (my parents still haven't forgiven me for choosing an out-of-state private college over UC Berkeley with its much lower tuition for CA residents).

Of course, this could all be a smokescreen. Luttig may just have wanted more cash and the lifestyle accoutrements that go with it, but just have been loath to say that to the press, so he took the more sympathetic "did it for my kids" line. After all, "I need to send my kids to college" sounds more appealing than if he had explained the move by saying "I need a pimped-out Hummer, a gold-plated hot tub, an endless supply of Cristal, and a sweet tat that says '100% Konservativ 4 Life.'"

Posted by: Dave | May 11, 2006 2:48:51 PM

Paul G., my point wasn't about how superior one must be to be a judge. Rather, it was that the qualities that make one a good (or superior) practicing lawyer aren't necessarily the same as those that make one a good legal academic, or those that make one a good judge. Each position requires different, if overlapping, virtues.

Posted by: Paul Horwitz | May 11, 2006 2:55:29 PM

I would be surprised if money were the only motivation. It's not like the judge pay scale was unknown to him when he first became a judge. And, he had lifetime tenure as a judge but will now have effectively zero job security as a private GC, so the economics may not be unambiguously in favor of Boeing. But being the top legal dog of a global aerospace leader and a Fortune 500 company offers a completely different way of allocating time and attention than being a judge; I'm sure that was intriguing. Eric.

Posted by: Eric Goldman | May 11, 2006 3:11:15 PM

Maybe he figures that it isn't a real good time to be a prominent Republican jurist. The chances of another Bush nominee making it out of the Senate in the next two years are slight and the chances of the Republicans winning the White House in '08 are even slimmer. Being non-political and low profile would make him more palatable whenever a more moderate Republican gets in the White House, ten to fourteen years from now.

Posted by: Bart Motes | May 11, 2006 3:21:30 PM

I agree that there are probably plenty of "qualified" people who would jump at the chance to take judicial positions.

However, asking whether $170K is "enough to live on" misses the point. The question is, "Commensurate with what I could be making elsewhere, and taking into account the positive and negative attributes associated with each job possibility, am I adequately-, over-, or undercompensated at $170K a year?" If I could be making $500K for doing a job that I would enjoy equally and that would have similar demands (and taking into account whatever factors may be important to me, including prestige and so forth), I would be an idiot to work for $170K.

Given the education, prestige, and market power that federal judges have, not to mention the toll that being in the limelight may take on some people, it is completely reasonably that some judges would demand more money from the judiciary or choose private practice instead--particularly where a person would like to leave a financial legacy for his or her children when he or she dies.

I'm not knocking the job or the pay. I'm simply saying that it isn't ridiculous for a person to weigh her options and choose a different job based on the money. The same holds true with academia or any other job.

Personally, I am choosing to go into academia despite what it does to my earning capacity because of the other benefits that I see.

Posted by: Hillel Levin | May 11, 2006 3:43:24 PM

Does anyone else want to take bets on how crushed Bart is going to be feeling on November 4th 2008, when America once again lets him down by electing a Republican President?

On the other hand, given the incompetence of our leaders in the Senate, I have to admit I'm starting to wonder about their ability to actually transact business of any kind, let alone nominations. So on that point, the jury is out.

Posted by: Simon | May 11, 2006 4:15:16 PM

This article suggests that Luttig quit because he was worried about the growth of executive power:
http://online.wsj.com/article_email/SB114727449814548996-lMyQjAxMDE2NDE3MTIxNzE0Wj.html

Posted by: Frank | May 11, 2006 8:10:35 PM

Dear Simon,

Why don't we instead take bets on which conservative hack will be the last to continue defending the Bush administration? I'll be happy to work out a side-payment with you if you'll guarantee that it'll be you. Money for nothing. In other news, why on earth are you so confident about Republican prospects? Sure, they might be able to eke out a victory in '06 due to gerrymandered districts, but I doubt you'll see a compelling historical picture in which a two-term president with 55% disapproval, 30% approvals, with nearly 70% of the population saying the country is going in the wrong direction is followed by a member of his own party.

Affectionately yours,
Bart

Posted by: Bart Motes | May 12, 2006 10:51:15 AM

What would happen if employers would start offering job positions through reverse auctions? What if everyone would have to bid offering less money in order to get the job with higher position? Scary - hu?

Posted by: online auction | Mar 4, 2007 3:22:50 PM

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