Since 1969 the real value of a federal judge’s salary has declined. Meanwhile, profits per partner at prominent law firms have skyrocketed. Chief Justice John Roberts has highlighted this development, along with problems retaining and recruiting federal judges from the private sector, and concluded that Congress’s failure to raise judicial pay has “reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal Judiciary.”

This Comment analyzes the crisis that Chief Justice Roberts has identified. In particular, this Comment focuses on the link between judicial pay and ideology. After marshalling data from the judicial confirmation process over the past thirty years, this Comment finds that low judicial pay has helped create a more ideologically polarized bench.

Part I explores Chief Justice Roberts’s argument that, as a result of stagnant judicial compensation, the quality and independence of the judiciary are in jeopardy. Part II analyzes the only empirical study to date on the link between pay and performance in the federal judiciary. That study, authored by Professor Scott Baker, concludes that the modern level of judicial pay has not, in any quantifiable sense, affected the quality of the judiciary. However, the study contains evidence that low pay may be undermining the independence of the judiciary by attracting more ideologically driven judges in major markets. Judges from the top five legal markets (Top Five Markets)—New York, Los Angeles, Chicago, San Francisco, and Washington, D.C.—tend to exhibit more partisan voting patterns and citation practices. Thus, the study suggests that judges who, generally speaking, forgo the most income to join the bench may be more ideological than their peers.

Part III presents new data and a model to support the view that the failure to raise judicial pay has, in major markets, created a more ideologically driven judiciary. This Comment focuses on the amount of time it takes a judicial nominee to be confirmed. Over the past thirty years, the Senate has taken significantly longer to confirm nominees from Top Five Markets than those from smaller markets. In other words, the Senate takes longer to confirm the nominees who, on average, pass up the most staggering salaries to become judges. This finding is statistically significant. After controlling for other plausible explanations, this Comment concludes that the best explanation for the longer confirmation times is that, as a result of low judicial pay, nominees from major markets tend to be more ideological than their peers.

One implication is clear: increasing judicial pay in major markets should diminish partisan voting on the bench. To ensure that our judiciary remains fair-minded and independent, Congress should swiftly pass legislation providing robust cost-of-living adjustments for judges in large cities. In addition, Congress should ensure that judicial pay keeps pace with inflation. Finally, in view of the demonstrable effects of low judicial salaries, Congress should seriously consider Chief Justice Roberts’s pleas on behalf of his colleagues for a judicial pay raise.

Want Less Ideology on the Federal Bench? Pay Judges More