Many thanks to the Faculty Lounge for having me guest blog this month.
In late June, the SCOTUS handed down Stern v. Marshall, its most recent decision to touch on Article III, legislative courts and the increasingly complicated world of bankruptcy adjudication. Congress could greatly simplify this area by just giving bankruptcy judges Article III tenure. Many of the constitutional complications would simply disappear (well, except perhaps that pesky Appointments Clause issue) and bankruptcy could be streamlined. So why not give bankruptcy judges Article III tenure? We could even make the judges PAS appointees.
The last time that was seriously tried in Congress, the proposal was killed by the political opposition. Who were the chief opponents of Article III tenure for bankruptcy judges? It wasn't Congress, but the Article III judiciary itself.
One of the arguments offered against tenure was that so enlarging the Article III judiciary would diminish the prestige of individual membership in the Club. That diminished prestige would, like flagging judicial compensation, make it more difficult to attract the best legal talent to the federal bench in the future.
Assuming, arguendo, we ought to pursue a certain level of judicial prestige as a recruitment incentive, is minimizing the growth in the size of the judiciary the best way to do it and what is the background level of prestige that ought to be maintained?
Prestige (ill defined in the marketing literature) seems to me to be a subjective reaction elicited from others in response to the perceived status of a position, product, etc., that one usually associates with being elite (e.g. high quality and possibly scarce in supply). That suggests we need to know who the relevant "prestige" community intended to have this reaction is. If the goal is to assure effective recruitment of well-qualified candidates to be federal judges, then presumably the target market should be peers of federal judges who are talented enough to do the job.
But who is that relevant community? Partners at (especially large) law firms, federal legislators, officers in the executive branch, state judges, law professors, the practicing bar generally, the legal press and media that will transmit the message to these groups? Those groups have grown significantly over time. What year should form the baseline ratio of judges to lawyers that maintains the requisite prestige?
One could always aim to increase federal judicial prestige by increasing the number of lawyers to judges. That may increase the prestige component of federal judicial "compensation."
But if we were to eliminate the initial stipulation that prestige ought to be something we pursue, would it just be better to compensate judges with other perks of office, e.g. better compensation (which I suppose might in turn have some positive effect on prestige)? Do we really want to encourage recruitment of judges who seek the position, in not insignificant part according to the prestige rationale, for the fawning of others?