In his otherwise sensible recent column about the appointment of Justice Nadon to the Supreme Court, the Globe’s Jeffrey Simpson describes the office of supernumerary judge (which Justice Nadon held prior to his appointment) “is one of the biggest boondoggles in the public sector.” This is quite wrong, silly even. Supernumerary judges are actually a very good idea, and a very good deal for the taxpayers.
Mr. Simpson’s “boondoggle” claim is based on the fact that supernumerary judges “collect salaries while working only part-time.” That is indeed so, pursuant to section 28 of the Judges Act, RSC 1985, c J-1, for the judges of the federal courts, and section 29 for judges of provincial superior courts. “Part-time” typically means half-time. So, full pay for half-work. Nice gig if you can have it, right?
What Mr. Simson does not say is that the judges who are eligible to serve as supernumerary judges are also entitled to retire with a full pension. The conditions of eligibility for the office of supernumerary judge, set out in subs. 28(2) and 29(2), are the same as those of eligibility for the grant to the judge of “an annuity equal to two-thirds of the salary annexed to the office held by the judge at the time of his or her resignation, removal or attaining the age of retirement, as the case may be,” pursuant to subs. 42(1) of the Judges Act. (Eligibility both for becoming supernumerary and for retirement with a full pension is a function of a combination of age and length of judicial service.)
This means that a judge’s financial gain from becoming supernumerary rather than retiring amounts only to a third of his or her salary (since he or she would be receiving two thirds of that salary as a pension). And in return for one third of his or her salary, he or she does half the work. How’s that for a boondoggle? That’s looking at things from the individual judge’s perspective. Now look at from the perspective of the taxpayer, putting to one side the nonpecuniary benefit we get from retaining, rather than losing to retirement, some of our most knowledgeable and experienced public servants. If the office of supernumerary judge were abolished, and those who hold it were shoved into retirement (let’s assume away the potential constitutional difficulties with this), we would still have to pay their pensions ― and hire a full-time judge for every two supernumerary judges instead. That would mean paying the equivalent of 1 + 2*2/3 = 2 1/3 judicial salaries instead of only two. Now that would be a boondoggle, wouldn’t it?
Being a judge is a great job, and money is only a part of what makes it so. As Richard Posner writes in How Judges Think,
[o]ne of the nonpecuniary compensations of a judgeship, for those whose next most attractive alternative would be private practice, is not having clients to kowtow to. Another … is being kowtowed to by the lawyers who appear before the judge. Deference is a significant nonpecuniary reward of a judgeship (59).
So too are job security and even greater leisure, at least relative to private practice. But judges are also motivated by “a desire to be good workers,” a “judicial work ethic” (61). In the United States, where judicial pensions are equivalent to the full judicial salaries, “senior judges” ― the counterparts of the Canadian supernumerary judges ― work, as Judge Posner points out, “for nothing” ― or rather, for the love of what they do (and also the nonpecuniary benefits it brings). That is not true of Canadian supernumerary judges, but in terms of money and labour, they still put in more than they get back, in order to continue working. Attacking them as the beneficiaries of a sinecure is unfair, and simply silly.