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Presented by the government keeps its sight fixed on sound fiscal management. . . . In the government's view, the public reason- ably expects judges to be subject to similar restraint as that implemented for the federal public administration broadly." Under the 2009 budget, annu- al wage increases for the federal public administration were limited to 2.3 per cent in 2007-08 and 1.5 per cent for the following three years, and judges were to be no exception. Needless to say, this decision was met with much judicial gnashing of teeth. U.S. federal judges have long claimed they are underpaid (they make about the same amount as their Canadian counterparts, taking into account the exchange rate). U.S. Supreme Court Chief Justice John Roberts, in his 2006 Year-End Report on the Federal Judiciary, said the pay problem had reached the level of a "constitutional crisis." But, as Adam Liptak recently pointed out in The New York Times ("How Much Should Judges Make?" Jan. 19, 2009), many who have consid- ered the issue carefully have a different point of view. In a 2008 article in the Boston University Law Review, lawyer and econ- omist Scott Baker concluded, "Low pay does not impact voting patterns, cita- tion practices, the speed of controversial case disposition, or opinion quality." A 2007 empirical study of U.S. high court judges provided little evidence that rais- ing salaries would improve judicial per- formance, and concluded, "the case for a pay raise has not been made." (Choi, Gulati, and Posner, "Are Judges Overpaid?" University of Chicago Olin Working Paper No. 376). Liptak comes down on the side of the naysayers. He writes of the U.S., "being a judge is pret- ty sweet work and the job is in high demand. It comes with status, power, good working conditions, no clients, the ability to affect policy, and the satisfac- tion of doing justice." There's also a good pension and excel- lent job security. Canadian judges have the same advantages. What's not to like? There is no evidence, or any good arguments, to support the idea that higher pay for judges will improve their performance. Nor is there evidence or arguments to suggest that higher pay will attract better lawyers to the bench. There is wide agreement that, in the higher echelons at least, the quality is pretty much as good as it could be. This forces those in favour of more money for judges to fall back on a vague argu- ment about "respect" for the judiciary and courts. Liptak writes: "What is most interesting about the basic argument made for a judicial pay raise is that it appeals to a value that many judges resist in other contexts. It is an argu- ment about fairness and respect. It is the sort of argument liberals make for raising the minimum wage or for law that guarantee equal pay for equal work." The nub of the "respect" argument is that more money for judges demon- strates more and appropriate respect for the judiciary and the courts. What a weak argument this is! The cast of villains in the current economic night- mare dramatically illustrates that there is no correlation between cash and vir- tue. The miserly pay given to valuable and respected contributors to society — elementary school teachers or social workers, for example — is proof that the respect of society has got nothing to do with the amount of money it hands over. As Liptak says, being a judge is pretty sweet work. There's a queue out the door of able and dedicated people who want the job. The "respect" argument is specious. Judges, including justices of the Supreme Court of Canada, should wait a while before their pay is bumped significantly. The minister of Justice is right about what the public reason- ably expects. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com www. C ANADIAN Law ye rmag.com M AY 2009 27 ntitled-6 1 3/31/09 3:04:53 PM ABORIGINAL LAW May 26 – 27 | Vancouver PARAJURISTES May 26 – 27 | Montréal HEALTHCARE FINANCE May 27 – 28 | Chicago DRUG PATENTS May 28 – 29 | Toronto COMMERCIAL AND CIVIL LITIGATION May 28 – 29 | Toronto ABS 2009 May 31 – June 2 | Banff AIRCRAFT TRANSACTIONS June 1 – 2 | New York CARBON MANAGEMENT June 3 | Calgary TERRAINS CONTAMINÉS June 8 – 9 | Montréal ABORIGINAL ECONOMIC DEVELOPMENT June 15 – 16 | Ottawa EMERGENCY CARE June 15 – 16 | Toronto COMMERCIAL INSURANCE June 15 – 16 | Toronto CORPORATE IMMIGRATION June 17 – 18 | Toronto ADMINISTRATIVE PROFESSIONALS June 18 – 19 | Ottawa COSMECEUTICALS June 29 – 30 | New York Media Partner ENROLL TODAY! 1 888 777-1707 www.insightinfo.com JACQUI OAKLEY