Judicial Laterals

23 Pages Posted: 26 Dec 2017

Date Written: December 19, 2017

Abstract

Just as some judges are reassigned or promoted within a judicial system, some judges occasionally engage in a practice to which we logically might refer as “judicial lateraling”: They move from being a judge in one judicial system to being a judge in another.

Several factors support the prevailing wisdom that judges will lateral (if they have the opportunity) from a state judicial system to the federal judiciary. Federal judges enjoy great job security (life tenure), pay that generally exceeds the pay of state judges, assurance that their compensation will not be reduced, and attractive retirement benefits. Moreover, the federal judicial system is generally seen as more prestigious—along a variety of metrics—than the various state judiciaries.

At the same time, there are reasons that one might expect at least some federal judges to be attracted to at least some positions in a state judiciary. First, the judicial system in which a judge works is only one measure of the hierarchical prestige she is thought to enjoy. In general, positions on higher courts are thought to be more prestigious than positions on lower ones. Moreover, appellate court positions might offer (at least for some) the promise of more interesting work, more predictable hours, and even more leisure time. On this logic, while we should generally expect to see far more laterals from the state judiciaries to the federal judiciary, we might expect to see a few jurists move from low levels of the federal judicial hierarchy to higher levels of the state judiciaries.

Moreover, in light of evidence that some state judiciaries are more “professional” than others—indeed, a select few are, on some measures, more professional than the federal judiciary—we might observe different lateral patterns for different jurisdictions. In particular, for some state jurisdictions that feature (or at least are perceived to enjoy) low levels of professionalism, the relevant hierarchy might place the entire federal judiciary above the entire state judiciary. For other state jurisdictions that feature higher levels of professionalism, one can imagine a more complex interlocking hierarchy where the state’s appellate courts (or at least its high court) lie between the federal district court and the federal court of appeals. Beyond professionalism, the standard judicial term in office and the salaries the state pays its judges also may determine whether an interlocking hierarchy inheres.

This Article examines these questions empirically, relying upon a novel database of movements by judges from a state judiciary to the federal judiciary, or from the federal judiciary to a state judiciary. It finds evidence consistent with all these hypotheses.

Keywords: Judges, Judiciary, Federalism, Labor markets

JEL Classification: K10, K40

Suggested Citation

Nash, Jonathan, Judicial Laterals (December 19, 2017). Vanderbilt Law Review, Vol. 70, No. 6, 2017, Emory Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=3090752

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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