Judge Selection Economics: Business Suffers

The Chief Justice's Annual Report, issued Sunday, contains facts that demonstrate the economics of judicial selection.  First, federal judges are leaving the bench, not retiring, in increasing numbers.  Seventeen have left the bench in the past two years.  While Chief Justice Roberts worries about these numbers his concerns seem overblown.  This is not a large number, given the number of federal judges on the bench. Many judges leave to engage in for-profit arbitration groups.  The low number leaving is also explained, in part, by the second fact. Second, and more significantly, is the claim that fewer and fewer federal judges come from private practice.  Only forty percent of the new district court judges come from private practice, although, and, I am guessing here, well over 80 percent of all licensed lawyers are in private practice.  Judges come from the public sector or from law schools.  Judges are no longer the cream of the private bar.  The salary differential from private practice to a judge's salary is just to great.  The selection of judges will, of course, reflect a functional and political slant on how the judges decide cases.  I would suggest, subject of course to ridicule, that this explains why  many judges are so unsympathetic to context and culture of doing business in the United States.  Judges too often, with the best of intentions, do not and perhaps cannot reflect on or predict the effect of their decisions on the rigors of doing business (both on the operating side and the capital raising side) in a competitive environment.