Pruning/Saving the Federal Judiciary

Judge Jonathan Kobes on the U.S. Court of Appeals for the 8th Circuit rated “not qualified” by the ABA because, inter alia, he was “unable to provide sufficient writing samples of the caliber required” of a circuit judge. Would he quit if he were paid enough?

There is a lot of gnashing of teeth on the left about Moscow Mitch’s successful confirmations of conservative-leaning Federal judges. And, let there be no doubt, Moscow has pushed through scores of judges — all without much regard to their qualifications. Good or bad, brain dead or on life support, judicial candidates that who have the “right” blessing have gotten confirmed. From Moscow’s point of view, let quality be damned.

And federal judges have life-time appointments; they don’t age-out; they sit for as long as they are mentally and physically competent — and sometimes longer than that. But, there is a strategy that would only be available to a Democratic House and a Democratic Senate and Democratic President to address Moscow Mitch’s court-packing success.

Federal district judges earn $208,000 per year (and they are allowed to earn an additional $21,000 from teaching). This is a bit better than the average annual partner compensation of $187,000. But compare both of those figures to the profit per equity partner of the top 100 firms which is a staggering $1.8m. Is it so hard to think that a federal judge might not be swayed to leave the bench to snag a position at one of those firms? Well, that does happen from time to time. But, the incompetent and the mediocre will not be so fast to gain employment in the upper ranks of the law. In most instances, they were not making huge sums before their appointments and there is little reason to think that the passage of time will make them more attractive as candidates for employment. We cannot rely on the private section to trim the Federal bench.

It is also true that neither the Executive nor Congress can reduce the compensation of Federal judges. If that were not the case, Federal judges would be subjected to economic punishment for their decisions. Additionally, we cannot Constitutionally reduce salaries of all judges in order to induce a few to leave.

However, there is no Constitutional prohibition on rewarding judges to leave the Federal bench and that is precisely what should be done. Specifically, Federal judges appointed during specific periods of time (2016–2020) should be given either a substantial, tax-free bonus to resign from the Federal bench or a tax-free increase in their pension if they resign (either or both within a…