David Bernstein thinks that Supreme Court Justices aren't underpaid, because few of them take the Luttig route and leave for private practice. Dahlia Lithwack obviously disagrees.
I suppose Bernstein has a point, and it's certainly true that "qualified" people remain on the courts. But at the same time, I wonder whether there aren't some hidden dangers in making the judiciary so underpaid relative to private practice. Sure, we like to think that judges are motivated by an altruistic love of public service, but, people being people, lots of the folks who really want to be federal judges enjoy the status and prestige and exercise of power. Now some of that is inevitable, but do we want people for whom that's the sole motivation? Aren't the sorts of people who enjoy exercising state power -- or even the altruists -- likely to have un-libertarian notions of the proper bounds of state power? Do we really want a judiciary which consists of a bunch of weirdos like David Souter, single men who live with their moms in cabins in New Hampshire?
And even if judges start out relatively normal, can't knowing their former law clerks do so very much better have an embittering effect? People who don't have much property themselves may well be less likely to be sympathetic to property rights, if nothing else. I mean, Dahlia Lithwack really does have a point that there's at least some risk that our judges will "mov[] way beyond envy, and on into bitter, grinding resentment." Do we really want to risk having people who make some very important decisions nursing such grievances?
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