The best judges that money can buy?
The ostensible topic that week was a legislative proposal to raise the pay of Illinois judges. The more interesting topic was whether it is appropriate, or even possible, to use private sector earnings of Illinois’s top attorneys as the standard for the public sector. Spoiler alert: This little essay did not settle the question.
For a change I decided to use logic rather than emotion in evaluating the case. My reasoning went like this: A) No nation has more laws, and less respect for them, than the U.S. B) Laws are largely written by and enforced by lawyers. C) Judges are lawyers, so, D) we should have no respect for judges.
I admit I'm not sure I got that right; I dropped out of Logic 101 after three weeks to recover from the painful condition we in the late '60s used to call placard wrist. I undertook this tortuous analysis in response to the recent passage by the General Assembly of a pay raise for the state's judges. Their pay would go up by about a third on average, up to a maximum of $75,000 for state supreme court judges. Gov. Jim Thompson, who is rumored to covet a judgeship upon his retirement from politics in spite of his inability to come to a firm decision about anything, signed the bill. This time of year, not all the nest-feathering around the statehouse is going on in trees.
The raise will be the judges' first since 1979. Inflation has so eroded the purchasing power of our jurists that they can barely keep up with their catamaran payments. Country club membership fees have ballooned ominously, and the price of golf slacks has come to comprise a significant element in the Consumer Price Index.
One wants to sympathize. Alas, the case for higher pay for judges has yet to be proven, even though the General Assembly's argument in favor of more money is plausible, and has at least some connection with public policy. A partner in a successful private law firm, they argue, can earn two or three times what a judge can earn in Illinois. As a result, good judges are leaving the bench as fast as their wing-tips can carry them.
Dire news, if true. I remain a little leery of using private sector earnings as a standard for public pay, however. For one thing, there are some things more important than money. Being named to a judgeship, for example, confers upon the meanest lawyer a dignity he would otherwise not merit, rather like the effect that a saving marriage used to have on the reputation of a pregnant woman.
Besides, I haven't seen any list of the good judges Illinois has lost to private practice. I would like to see such a list—not of the judges who have left, but the good ones who have left, and the good ones who have left because of money and not because they wanted to retire or didn't like the paperwork or couldn't stand handball.
The fact is that we no more know what a good judge is worth than we know what a good nurse or a good professor is worth. Deciding on a figure requires that we first consider what it is a judge does. A traditional reformist rationale for higher pay for public officials is that higher pay kills the temptation to accept bribes. One can always question whether honesty that is bought is worth the price, but it seems to work, and Illinois judges are notably less corrupt than they were a generation ago. Not necessarily better, but less corrupt.
In return for their pay we expect our judges, in addition to being honest, to take seriously their obligations as public servants and to do their duty on behalf of the larger public good, even in the face of the criticism of aggrieved parties. This is essentially the same standard to which we also hold meter maids, however, and somehow one expects more. A knowledge of law, for example, and occasional wisdom.
That may be expecting too much. In January Illinois Issues magazine published the results of a survey of Illinois judges by Sangamon State University's Center for Legal Studies. The project (the work of Stephen Daniels, Rebecca Wilkin, and James Bowers) surveyed a sampling of the state's 654 sitting trial judges. SSU's typical judge came to the bench from private practice (67 percent) while most of his colleagues (24 percent) came from government posts, either elective or appointed. Most judges claimed special expertise in the area of criminal law—a dubious credential, since they also claimed that only about 12 percent of their dockets consisted of criminal cases. Nor do they apparently strive to broaden their expertise; few judges take special training after they reach the bench.
In fact, the judges ranked a knowledge of the law only fifth on the list of assets needed on the job. Why? As D., W., and B. note, "The judges see their function as a limited and pragmatic one . . . ." Most bench work, they point out, is "quite routine and administrative."
We have, in other words, appointed people who are untrained in administration to do what is (at the lower levels anyway) essentially an administrative job. This may explain the tedious appellate process, the stultifying procedural detail, the vagaries in sentencing which have made the phrase "criminal justice system" so risible.
The crucial part of the judicial selection process occurs not in the locker room, as popularly supposed, but in the classroom. Few really first-class men or women go into law in the first place, and those who do quickly come to regret it, and begin to daydream of the day they can afford to get out and open a little wine bar someplace.
Indeed, the problem with judges is not that they are poorly paid lawyers but that they are lawyers, period. The SSU survey confirms what common sense suggests, namely that our judges are heart and soul of the establishment. They grow up breathing its values, and regard it with the grateful respect with which the rest of us might regard a favorite aunt who died and left us a million bucks on condition we keep the family name out of the papers. Their limited notions of the functions of the judiciary are an inheritance of their training. Interestingly, the survey reveals that the longer a judge is on the bench—the longer it has been, in other words, since he functioned as a lawyer—the more generous a view he takes of the courts' role. Unlike so many other professions, it is often the younger practitioners of the law who are the more conservative.
It is my suspicion that the best judges in Illinois are not on the bench but are walking around on the street. I suspect that more than a few of them might be willing to work for less than $60,000 a year too. No special training is required to make laws, after all. Why is it needed to administer them? ●