O'Scannlain on Circuit-Splitting and Salaries

Ninth Circuit judge Diarmuid Fionntain O'Scannlain spoke to a small group of Columbia Law students last Friday at lunch. He gave some prepared remarks about the history of judicial independence, but his response to a question about some contemporary claimed attacks on that independence were of particular interest.

A perennial hot topic for any Ninth Circuit judge is the question of whether the circuit should be split. The two arguments -- one bad, one good -- for such a split can be encapsulated in a single George F. Will column [1]. Will began, "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases. Last term, 18 of the court's 82 cases (22 percent) came from the liberal 9th Circuit, based in San Francisco, and the 9th was reversed in 15 of the 18." The bad argument is that because a given circuit is prone to being reversed -- and in particular, on decisions viewed as "liberal" -- it therefore ought to be split so as to lessen its power. The good argument is that because a single circuit now covers 20% of the U.S. population, it therefore ought to be split so as to lessen its burden.

Judge O'Scannlain spoke strongly in favor of treating the circuit-splitting question in purely administrative terms, as past creations of new circuits have been, and against using a split as a means to alter the judges' decision making. Unlike some of his brethren, he appears to favor splitting the circuit, at least in theory, but considers the question of how to split it to be a difficult one. The proposal he discussed would put California and Hawaii in one circuit and the other states in another, a division that he said Hawaii likely would protest due to its being dominated by California.

To my mind, the more obvious division would be a circuit just for California -- which in itself comprises 12% of the U.S. citizens population -- and another for the rest of the current 9th. Naturally this still wouldn't entirely fix the political aspect, and the "crazy liberal Californian" rhetoric would continue, but it strikes me as the easiest solution from an administrative viewpoint. There would be no confusion as to which circuit cases from the California Supreme Court were to go (as there would be if the state were divided), and it would make a tidy halving of the circuit's population.

With regard to judicial salaries, an issue recently declared by Chief Justice John Roberts to have "now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary," Judge O'Scannlain joined most commentators in deeming Roberts's declaration of emergency to be an overstatement. At the same time, O'Scannlain wryly acknowledged that he has a vested interest in higher compensation for federal judges, and pointed out that with $145K salary, plus signing and clerkship bonuses, his clerks make more money in their first year at a law firm than he does as an appellate judge. Judge O'Scannlain emphasized that increases in judicial salaries should be made without reference to politics, and that compensation should not be tied in some way to political perception of judges' performance.

I agree that salaries should not be politicized, but I think these comparisons to the private sector are inappropriate. Government work simply is different, just as industries within the private sector are different. (As much as Christmas bonuses at the major New York firms were appreciated, they inevitably paled in comparison to the Goldman Sachs windfall.) Judicial salaries should be on par with those of the other branches of government, and it is the failure to keep salaries ahead of increased cost of living that I find most troubling. Other civil servants can expect that their real wages will remain at least constant, not downgraded by inflation, and judges ought to get at least that much. Federal district judges are paid the same as senators and representatives, but the Washington revolving door ensures that former Congressmen can build healthy nest eggs as lobbyists, whereas the social capital accumulated as a judge goes unspent if the judge does not join those who leave the bench before retirement age.

The best comparison Roberts makes is between law professors and judges, as one could consider them to be working at similar levels of difficulty; the judges making law in real life, the professors making it in their own heads, etc. The 21st century law school dean -- like the modern university presidents -- functions far more as a fundraiser than as an intellectual and comparing his salary to a judge's is somewhat unfair. Judges need not hustle for money, gladhand potential donors nor please the various constituencies of faculty, students and alumni. In their happy disregard for what others think, federal judges with lifelong appointments are much more like tenured professors. Many professors would love to become appellate judges, even at a lower salary, in order to exercise the power it grants (trial judgeships probably are less inviting). Some federal judges supplement their salaries in one of the few ways permitted after the 1989 Ethics Reform Act: as teachers in law schools.

[1] Of course, the Ninth Circuit is a favorite whipping boy for Will, as it is for many conservative commentators; less than a month after the above-quoted gibe, he again criticized it.

The reliably unreliable U.S. Court of Appeals for the 9th Circuit -- often reversed but never in doubt -- predictably ruled, with interesting indifference to pertinent Supreme Court precedents, against the parents. Soon -- oral arguments are tomorrow -- the Supreme Court can remind the 9th Circuit of the Constitution's limits on what schools can do in the name of "diversity."