More ink continues to be spilled on the judges' pay referendum, mostly rehashing arguments (sans any acknowledgement) made on this blog and by other bloggers like Paul MacMahon and Fiona deLondras, but with differing amounts of spin. Today's piece, by Estelle Feldman, correctly notes that the proposed amendment is badly drafted and is susceptible to misinterpretation. However, I am not too sure about her claim that a pay cut could be imposed on just one judge. The very use of the word "judges" in the amendment ought to militate against such a reading. Her point about selective pay cuts for a judge or judges who rule against the government in a lawsuit is not supported and does not follow from the argument about not defining "class." A selective, punitive pay cut would probably be illegal and no sensible government would take such a big legal risk. Setting aside the legality of a pay cut for just one judge or a targeted group of judges, the severe political cost likely to be incurred by any politician brave enough to go in that direction makes such a threat highly unlikely. Moreover, there is no evidence of such a practice being employed in any comparable jurisdiction. So, this argument is a distraction from the real issue about poor drafting.
The curious thing in the entire debate is that both sides seem to be beating about the bush rather than offering their strongest arguments. If, as the government claims, the purpose of the pay cut is to make Irish judges share in the pain, and to eliminate preferential treatment, why draft the amendment with undefined classes and no assurance of parity in the amount of any pay cut across the public sector? Why not offer a simple amendment imposing the same reductions in pay as are imposed by law on all public servants? This would defang all arguments about judicial independence being compromised etc. The government is lucky that it is not losing the messaging battle as a consequence of its strange drafting strategy - opinion poll evidence seems to indicate strong public support for the pay cut. Consider the other side: why this leap into judicial independence, when the easier case is that the amendment is terribly drafted, confusing, likely to yield unintended outcomes, etc? It will take a miracle to convince the Irish voter that judicial independence would be compromised by the adoption of the amendment. Opponents of the amendment might have better luck arguing that judges are not overpaid, that pay has to reflect expertise and opportunity costs in order to retain and attract the best candidates for judicial office. They might point to recent proposals for pay hikes in jurisdictions like New York to support that point. But one suspects that this is a hard case to make because Irish judges are not poorly paid. They are probably paid just about right and that is a difficult point to sell. Hence the distraction about judicial independence.
Some of my older posts on the pay referendum are here, here, here, here, here, here, here and here.
The curious thing in the entire debate is that both sides seem to be beating about the bush rather than offering their strongest arguments. If, as the government claims, the purpose of the pay cut is to make Irish judges share in the pain, and to eliminate preferential treatment, why draft the amendment with undefined classes and no assurance of parity in the amount of any pay cut across the public sector? Why not offer a simple amendment imposing the same reductions in pay as are imposed by law on all public servants? This would defang all arguments about judicial independence being compromised etc. The government is lucky that it is not losing the messaging battle as a consequence of its strange drafting strategy - opinion poll evidence seems to indicate strong public support for the pay cut. Consider the other side: why this leap into judicial independence, when the easier case is that the amendment is terribly drafted, confusing, likely to yield unintended outcomes, etc? It will take a miracle to convince the Irish voter that judicial independence would be compromised by the adoption of the amendment. Opponents of the amendment might have better luck arguing that judges are not overpaid, that pay has to reflect expertise and opportunity costs in order to retain and attract the best candidates for judicial office. They might point to recent proposals for pay hikes in jurisdictions like New York to support that point. But one suspects that this is a hard case to make because Irish judges are not poorly paid. They are probably paid just about right and that is a difficult point to sell. Hence the distraction about judicial independence.
Some of my older posts on the pay referendum are here, here, here, here, here, here, here and here.
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