Chief Justice of the Supreme Court John G. Roberts has been on a mission to raise the salaries of judges. Whereas forty years ago, judges out-earned senior law professors and law school deans, they now earn less than half as much. Indeed, the real income of judges has dropped during this period.
The argument for salary increases is not about justice or fairness. Who is to say what a "just" or "fair" salary is? One of the virtues of competitive markets is that they enable us to avoid having to answer tough questions like these. No, the argument is about efficacy: if we want to retain good judges and entice good lawyers to leave their lucrative jobs with firms or their cushy appointments at law schools, and enter the judiciary, we have to pay them more.
This certainly seems like a reasonable point of view. Thus, it is surprising that recent studies of judicial performance suggest that the reduced real income of judges has had almost no effect on retention, productivity, or quality of performance. The authors of these studies were certainly amenable to the argument that judges should be paid more if the evidence, some sort of cost-benefit analysis, warranted it, their conclusions were that the evidence did not suggest that an salary increase was needed.
Not everyone accepts the conclusions of these studies. Judicial quality is a difficult thing to measure, and a few empirical studies rarely settle an issue as complex as this one. Who knows what the final verdict will be as more research gets done. But I want to raise a more fundamental issue. People on both sides of the debate seem to accept that "you get what you pay for." They differ only in their judgment about whether judges are currently paid enough. What I want to suggest is that perhaps "you get what you pay for" is the wrong way to be looking at this issue.
What do we want in a judge? In addition to knowledge of the law, we want honesty, integrity, dedication, and wisdom. Is there any reason to believe that higher salaries will buy us more of these virtues? On the contrary, I think the evidence from our current economic collapse suggests that there is a negative relation between salary on the one hand, and honesty, integrity, dedication, and wisdom on the other. Raising salaries will succeed in getting us judges for whom high salaries are important. But what makes anyone think that these are the kinds of people we want? Instead of putting scarce resources into salaries, we should be spending money to improve the conditions under which judges work (manageable case loads, able assistance, room for judicial discretion, and so on), so that it is actually possible for judges to perform their work virtuously.
The same arguments apply as we try to recruit more and better teachers and more and better primary care physicians. They certainly should be paid enough--enough to lead decent lives and see to the needs of their families. But beyond that, resources should go to making the conditions under which they work adequate for them to do their jobs well. Enticing doctors or teachers with high salaries will get us the kinds of doctors who prescribe the drugs made by companies that give them perks or kickbacks, and teachers who focus their efforts on getting students to do well on the tests that will determine the teachers' compensation.
There is no reason to assume that money buys us the things that matter to good judging, teaching, or doctoring. Indeed, there is good reason to believe the opposite, that people who can be enticed by high salaries are just the people we don't want. We should leave the people who are motivated by the prospect of large financial rewards to work in occupations where making money is the point, and seek people motivated by other things for professions that demand qualities of character that are not especially compatible with the pursuit of money.
Lest I be accused of being simplistic, I want to acknowledge that it is possible for people to operate with multiple motives. It is possible to pursue wealth while simultaneously pursuing justice with honesty and integrity. Also, there is no doubt that if someone is faced with two jobs that are equivalent except for salary, the better-paying job will win. But that is clearly not the case when one is choosing between being a lawyer, a judge, or a law professor. My point is only that there is no reason whatsoever to believe that more money will get us more of what we want in judges (or teachers or doctors). And there is good reason to think it will get us less.