Appoint More Federal Judges (And Pay Them More Too)

As I mentioned the other day, judges are frequently clueless about how much money it takes to litigate a case. The issue often arises when they are asked to approve counsel fees, and fail to inquire of opposing counsel how much they spent to litigate the exact same case.

Further proof is demonstrated by these preposterous comments from the Supreme Court during oral argument on whether enhancements are appropriate in a statutory fee-shifting case:

“Seven hundred thousand dollars for a lawyer. Wow!” Justice Stephen Breyer said, referring to the amount one lawyer could make for a year’s work on the Georgia litigation. “How do we explain this to the average person?”

Breyer said, “Very high is enough” when it comes to lawyer fees. “You don’t need very, very, very, high.”

Judge Breyer is a smart man and did not just fall off the turnip truck. Yet he appears shocked -- shocked -- that you can burn through $700k in a year on a closely-contested piece of federal civil litigation.

Judges, take a look at your docket -- every one of your civil cases of any significance at all has lawyers spending more than that in a year. If you call Marty Steinberg in for a discovery hearing you have just cost his client $5k minimum before it's done. A summary judgment motion can easily run $50k or more (not including all the pre-motion discovery and Westlaw fees). Abbey Kaplan claims to review every document personally in his cases -- do you think this comes cheap? (btw I like the new website!)

What exactly do you think we're doing out here?

Now let's talk federal judges.

I don't want to get all Peter Fay about it, but when Tom Scott took his dogs and bolted from the bench way back when to earn a lot more money doing insurance defense, he started a trend. Just the other day, Judge Stephen Larson of the Central District of California left for private practice, and Chief Judge Collins explains why in this excellent editorial:

This court, which serves more people than any other federal trial court in the country, faces a crisis of retention, arising from stagnating judicial compensation and ever increasing caseloads. Since 1998, eight of our judges have resigned or retired. Five joined JAMS, a private alternative dispute resolution provider, where neutrals can earn the equivalent of our annual salary in a matter of months. Two became state judges, with higher salaries and better health benefits.

Judicial salaries haven't kept pace with inflation

A May 2003 report urged Congress and the president to provide for immediate pay relief, noting that during the previous three decades, federal judges' salaries declined in value, while the average American worker's salary increased by 17.5 percent. This erosion in judicial pay deprives judges of the prospect of salary stability during their tenure, while other federal employees receive cost-of-living increases to keep pace with inflation.

While all federal judges are affected, we have been particularly hard-hit, given the high cost of living in California and higher than average (and rapidly increasing) caseload. We led the nation in the number of mega-criminal cases filed in fiscal year 2008, with 25 such cases — including one with more than 70 indicted defendants. We expect this number to rise again in fiscal year 2009.

The Southern District of Florida is in a similar situation, with a heavy criminal docket, vacancies on the court, and situated in a place with a high cost of living. Let's face it -- judicial pay sucks.

Meanwhile in DC Congress has been conducting hearings on the Federal Judgeship Act. As Senator Leahy pointed out in a letter to the WSJ yesterday (corrected link thanks to Glenn Sugameli, staff attorney for Judging the Environment, who wrote two great letters on this), things are slightly different this year:

The Federal Judgeship Act incorporates the recommendations of the nonpartisan Judicial Conference, led by Chief Justice John Roberts. Just as I have sponsored bipartisan bills incorporating the Judicial Conference's recommendations during the past eight years, I have done so again this year. The difference this year is that no Senate Republican is cosponsoring the effort. They have all apparently had a change of heart now that we have a Democratic President.

The WSJ predictably calls Senator Leahy's efforts to get more federal judges on the bench a "court-packing scheme."

Just as predictably, President Obama is moving too slow and cautiously on appointing judges:

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

This is ridiculous. The time is now, be the change, yada yada yada.

Once we have more judges and they are paid better, maybe we won't see shock at the Supreme Court over a seven hundred thousand dollar legal bill.