NEW York’s top jurist, Chief Judge Judith Kaye, has a long and distinguished career on the bench. So her threats to sue the state with a frivolous claim over judicial pay raises have been disappointing, to say the least. On Tuesday, she told a group of business leaders, she claimed, “We are prepared for fullÃ¯Â¿Â½scale litigation against the state of New York if nothing happens by the time the Legislature adjourns.”
Kaye is understandably irked that the salaries of the states’ judges haven’t increased in some nine years. But the power to set judicial salaries clearly rests with the Legislature’s appropriations power, as spelled out in the state Constitution, which says that judicial pay “shall be established by law.”
The Constitution constrains the Legislature not to lower judges’ salaries over the term for which they have been elected or appointed—an important safeguard to preserve judicial independence—but hardly compels lawmakers to increase judicial pay.
Of course, the chief judge will likely be able to construct some newfangled legal claim that the Constitution doesn’t really mean what it says. After all, New York’s modern judiciary certainly hasn’t hesitated to take control of legislative policy in other areas—such as education funding. Still, it’s hard to see who would hear this case—every state judge would have a clear conflict of interest, yet there’s no issue that would allow federal court jurisdiction.
In any event, the fact that the chief judge of the state’s highest court would threaten to go to court to get her own and other judges’ salaries increased shows just how skewed our jurists’ views on litigation and the separation of powers have become. Can the chief judge really think that judges should be able to set their own salaries, with our tax dollars?
Let me emphasize that my complaint is not on the merits of Kaye’s argument. Adjusted for cost of living, New York’s judicial pay is 48th out of the 50 states. With pay of $136,700 a year, our jurists are hardly paupers—but they earn tens of thousands less than do associates at big Manhattan law firms in their first year out of school.
Little wonder that the chief judge has been able to assemble a cadre of leaders to support her cause, including Gov. Spitzer, Viacom General Counsel Michael Fricklas, and Partnership for New York City President (and Manhattan Institute trustee) Kathryn Wylde.
New York’s judicial salaries are plainly too low. The disparity in pay between judicial service and private practice means that it is harder and harder to attract qualified candidates with business acumen to the bench.
Getting good judges to serve is of vital interest to the state because we pay far more for excessive litigation than we do for judges’ salaries. New York City residents, for example, pay hundreds of millions of tax dollars to settle injury lawsuits filed against the city, and our public hospitals pay hundreds of millions more for medicalÃ¯Â¿Â½malpractice claims.
Moreover, what we pay for abusive litigation goes far beyond our direct public payments, as we all must shoulder the heavy burden for outÃ¯Â¿Â½ofÃ¯Â¿Â½control lawsuits in higher costs and reduced access to medical care. (Nationally, the “tort tax” consumes more than 2 percent of the economy.)
And just as New York’s judicial pay ranks near the bottom among the 50 states, so does litigation abuse hit our state far worse than others: The Empire State is one of the very worst in commercial and productÃ¯Â¿Â½liability litigation costs as a share of the economy, and the worst in medicalÃ¯Â¿Â½malpractice liability costs. The outÃ¯Â¿Â½ofÃ¯Â¿Â½controlÃ¯Â¿Â½jury phenomenon has even been dubbed the “Bronx jury effect” in the academic literature.
Paying judges more is hardly sufficient to fix New York’s litigation problems, but who sits on the bench is in many respect the most important tort reform. The problem New Yorkers face with runaway judges who step outside their bounds and legislate from the bench is of paramount importance. Chief Judge Kaye’s suggested lawsuit is indicative of the flawed mindset of our legislatorsÃ¯Â¿Â½inÃ¯Â¿Â½robes—and, ironically, her misguided threat proves her larger point.