Refining the Judicial Salary/judicial Performance Debate: a Response to Professors Cross, Czarnezki, Henderson, Marks, and Zorn

id=1115357); Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. (forthcoming 2008); Sunstein et al., supra note 10. 860 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:855 Table 1 Relationship Between Financial Sacrifice and Voting Patterns Controlling for Panel Effects Probit Model Regressors Model(1) Model (2) Model (3) Model (4) dem. judges dem. judges rep. judges rep. judges networth sample networth sample NETCOST 0.01 (0.89) 0.01 (0.65) 0.007 (0.77) 0.006 (0.49) selpref 0.107 (1.10) 0.253 (1.71) 0.014 (0.28) -0.079 (0.82) Age 0.002 (0.92) 0 (0.11) 0.003 (1.14) 0.004 (1.05) Sex -0.007 (0.27) 0.009 (0.24) 0.025 (0.78) 0.079 (1.91) Top Five -0.07 (1.11) -0.21 (1.74) 0.088 (1.35) 0.072 (0.75) PrivatePractice -0.04 (0.81) -0.132 (1.53) 0.004 (0.11) -0.017 (0.33) Professor -0.008 (0.14) -0.081 (0.75) 0.006 (0.15) 0.052 (0.60) Judge -0.044 (0.88) -0.119 (1.47) 0.024 (0.67) -0.053 (0.95) TOPFIVE NETCOST 0.025 (0.97) 0.121 (1.50) -0.024 (1.37) -0.04 (1.51) demjudge/ dempanel 0.117 (3.92)** 0.145 (3.55)** N/A N/A demjudge/ repubpanel -0.01 (0.41) -0.009 (0.27) N/A N/A repjudge/ dempanel N/A N/A 0.027 (1.09) 0.023 (0.68) repjudge/ reppanel N/A N/A -0.037 (2.13)* -0.056 (2.26)* NETWORTH N/A 0.001 (0.53) N/A -0.002 (0.49) NETCOST (topfive) 0.03 (1.37) 0.13 (1.62) -0.16 (0.89) -0.03 (1.26) circuit dummies Yes Yes Yes Yes Observations 2338 1166 3934 1957 Pseudo Rsquared 0.04 0.05 0.02 0.02 Robust z statistics in parentheses * significant at 5%; ** significant at 1% Estimated coefficients reflect marginal effects when all independent variables are measured at their mean. The base category for the panel effects is a judge voting with a split panel: one democratic-appointee, one republican-appointee. My dataset did not include judges appointed before 1974, after 2004, and district court judges sitting by designation. Since I constructed panel effects for those cases where three judges in my dataset participated in the decision,the number of observations differs from those reported in the original article. In light of CHZ’s reply, I also report NETCOST (Topfive) as the estimate for judges from topfive markets. Finally, Professor Cross correctly points out that researchers rarely rely on statistically insignificant results. The lack of significance could mean a bunch of things. It could be the result of mis-measured data, not enough data, too much correlation between the independent variables, or it could mean no 2008] REFINING THE DEBATE 861 association between the variables of interest.12 A small number of studies do, however, rely on and report statistically insignificant results.13 And when they do, even with all the limitations noted above, it is because our intuition, economic theory, or the previous literature tells us that there should be a correlation. The link between judicial salaries and judicial performance fits that bill. The reason is the nature of the claims advanced by the advocates of higher judicial pay, especially the Chief Justice. Conceding all the problems identified by Professor Cross, my data and analysis tell another side to the “constitutional crisis” story bandied about in the public domain and before Congress.14 12 See WOOLDRIDGE, supra note 7, at 135 (explaining the consequence of small sample sizes); see also KENNEDY, supra note 8, at 179-99 (explaining the consequences of multicollinearity); id. at 137 (explaining the consequences of mismeasured data). 13 Such studies appear, on rare occasion, in the leading peer-reviewed economics journals. See, e.g., Koleman Strumpf & Felix Oberholzer, The Effect of File Sharing on Record Sales: An Empirical Analysis, 115 J. POL. ECON. 1, 1 (2007) (finding that downloads had “an effect on [music] sales which is statistically indistinguishable from zero”). On rare occasions, they appear in the leading peer-reviewed sociology journals. See, e.g., Alexandra Kalev et al., Best Practices or Best Guesses? Diversity Management and the Remediation of Inequality, 71 AM. SOC. REV. 589, 610 (based on statistically insignificant results, concluding that some popular diversity programs don’t help women or African-Americans reach management positions). Occasionally, they appear in leading peer-reviewed law and economics journals. See, e.g., Orley Ashenfelter et al., Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J. LEGAL STUD. 257, 281 (1995) (stating that “we cannot find that Republican judges differ from Democratic judges in their treatment of civil rights cases”). And they sometimes appear in the leading law reviews. See, e.g., Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 858-59 (2006) (finding that “[f]or politically mixed panels, the [agency] validation rates of Democratic and Republican judges are very similar to each other; all but one of the differences are 10 percentage points or less and are statistically insignificant” and, concluding from this, “the influence of panel composition on judicial decisionmaking appears largely cabined to politically unified panels”). 14 See Chief Justice John G. Roberts, 2006 Year-End Report on the Federal Judiciary, 39 THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS (Admin. Office of the U.S. Courts, Wash. D.C.), Jan. 2007, at 1, available at http://www.uscourts.gov/ttb/ jan06ttb/yearend/index.html; see also Fed. Judicial Compensation: Oversight Hearing Before the Subcomm. on the Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 110th Cong. 4 (2007) (statement of Justice Samuel Alito) (“Without serious salary reform, the country faces a very real threat to its judiciary.”); Fed. Judicial Compensation: Oversight Hearing Before the Subcomm. on the Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 110th Cong. 1 (2007) (statement of Justice Stephen Breyer) (“I believe that something has gone seriously wrong with the judicial compensation system.”); Judicial Security and Independence: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 7 (2007) (statement of Justice Anthony M. Kennedy) (“The current [judicial salary] situation . . . is a matter of grave systemic concern.”); Chief 862 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:855 To see this, rather than consider standard statistical significance, slice the data another way. Look at the confidence intervals reported for NETCOST and each judicial performance measure. Table 2 reports these results.15