Members of the bar are appalled by the suggestion in this space that the pay for our judges be decided on the merits. That is the gist of two letters, issued in the adjacent columns, one from Barry Kamins, president of the Association of the Bar of the City of New York, and another from the president of the State Bar Association, Kathryn Grant Madigan. They refer to our editorials on the lawsuit by the chief judge of the court of appeals, Judith Kaye, seeking higher pay for herself and other judges. Mr. Kamins quotes the former chief justice of the United Sates, Earl Warren, as claiming that it is in the public interest that “the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

It happens that we have a high opinion of Ms. Madigan and Mr. Kamins and of their associations, not to mention the late chief justice. And of Chief Judge Kaye — and we do not sneer at her lawsuit. But permit us to say that we also have a high opinion of James Madison and John Adams and the other thinkers who made crucial contributions to our Constitution, and no idea that ever sprang from the Association of the Bar of the City of New York or from the chambers of the late chief justice was a match for the epiphany of separated powers, which has come down to us as a system of checks and balances.

The way it was put in the Constitution of Massachusetts, where separated powers were given an early and most articulate expression in Article XXX, was as follows: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The judges claim that the separation of powers supports their claim for a raise, and that it is infringed by linking their own salaries to those of the lawmakers in a political compromise. But the separation of powers argument is a double-edged sword that cuts both ways. This is where the members of the bar and Judge Kaye are in heavy seas. Isn’t it a violation of separation of powers for the judicial branch to usurp the budget power that normally resides with the executive and the legislature and set its own pay, subject to neither veto by the executive nor approval by the legislature nor obeisance to other keepers of the public purse? If this is the logic, what’s to prevent Judge Kaye from appropriating herself a Rolls Royce, while the speaker of the Assembly, who also hasn’t had a raise in a long time, is forced to putt around in his modest sedan? If the bar associations are so opposed to merit pay for judges, are they going to start requiring all the lawyers in the city to bill clients at the same hourly rate, regardless of an attorney’s skill, experience, or success?

As a general rule, judges are among our favorite people — brilliant, lively, dedicated, and even, we have sensed from time to time, a bit lonely. But surely some judges are doing a better job than others. Some work harder, are reversed less often, exhibit a greater fidelity to original intent, give more thought to precedent, and or simply present themselves in court with more neatly arranged robes and conduct themselves more graciously from the bench. Is it unconstitutional to compensate them accordingly?

Suppose, however, that Judge Kaye’s lawsuit gets all the way to the Supreme Court of America and a ruling comes down that merit should be entirely excluded from consideration in respect of paying judges. Then what is the poor taxpayer to do? Pay the least competent judges like the best and give them all a raise? Or pay the most competent judges like the least, and keep them all at the bottom of the merit pay scale? Here we predict that this matter will eventually be decided by the taxpayers, who, after all, have their own standing — which is something for their honors to bear in mind the next time they are asked to issue a writ of mandamus against the people.