The Wall Street Journal: Checks and Judicial Balances

Checks and Judicial Balances
The Wall Street Journal - June 14, 2008 - Page A10

Here's a weekend daydream: What if on Monday, you walked into work and gave yourself a raise? That's what happened in New York this week, when a state judge ordered the Governor and state legislature to pony up bigger paychecks for him and the rest of his judicial friends. It's the perfect plan – if only it weren't for that inconvenient detail about separation of powers. The ruling, by New York Supreme Court Justice Edward Lehner, commands the state Senate and Assembly to pass a pay raise for judges in the next 90 days – and make some provision to retroactively compensate them for the lean years. The four plaintiffs in the suit suggested $600,000 each would do the trick. Multiplied out for the entire New York Judiciary, that would put New York taxpayers on the line for $700 million.

New York Governor David Paterson was unamused. Only the state legislature has the power to set judicial salaries, his office rightly pointed out in a statement. The judge's decision "flies in the face of the state constitution." There's more where that came from. Still pending before Judge Lehner is a separate suit brought by New York State Chief Judge Judith Kaye, who has retained New York attorney Bernard Nussbaum to sue the Governor and legislature for a raise for all 3,000 New York judges. Judge Lehner will thus be expected to rule in a case in which he is effectively a plaintiff, and in which he is also judging a complaint by his judicial superior.

The suits are necessary, say the judges, because legislators will raise their salaries only when they also raise their own, a fact which has left paychecks unaltered for a decade. That, in Judge Lehner's words, represents an "unconstitutional interference upon the independence of the judiciary." After a decade of inflation, judges say their salaries have been effectively cut – something which is prohibited by law. At those rates, they say they now make less than what's pocketed by first-year associates at big law firms. But few would consider their salaries fodder for Oliver Twist. Chief Judge Kaye makes the most, at $156,000 a year, while others earn about $136,700. By comparison, Members of the U.S. Congress now make $169,300 a year. A memorandum of law filed on behalf of Governor Paterson and state Assembly Speaker Sheldon Silver in Judge Kaye's case notes that judges are already extremely well paid relative to the state workforce.

We have some sympathy for the judges, most of whom could make far more in private life. But then they also have extended tenure. To attract better people to the bench, we'd be willing to swap higher pay for term limits. New York judges may have a legitimate complaint about salary erosion, but they are exceeding their own legal authority by asserting the right to overrule the elected branches and set their own pay – about as basic a legislative function as one can imagine. Most judges choose their robes not for the salary but for the honor and significant authority, and, dare we say, the chance to serve the public. The hours are good, the work is interesting and they don't suffer the indignities of work life that are routine for the first-year associates whose salaries trump theirs. That, as they say, is priceless.