The trouble with judges

Judges, in Britain, have a starting salary of 92,000 rising to around quarter of a million for the Lord Chief Justice. Perfectly adequate salaries, you would think. Except that judges are recruited almost exclusively from the ranks of top barristers (trial lawyers). They are normally QCs (short for Queen's Counsels, also known as silks). Just occasionally a top academic lawyer with an honorary QC will be appointed.

Comfy as this salary may seem, a top barrister who takes a job on 92,000 (c. $150,000) is taking a 90% pay cut. Not many people are willing to do this. Often the very brightest barristers will not apply to be judges, or only do so late in life when they 'want to put something back' - and incidentally no longer have to take care of major expenses like mortgages and school fees.

This means that judges are not necessarily the best candidates available, or perhaps have passed their best. Surely this is a problem?

It bothers me much less - though it bothers me a bit - that the Crown Prosecution Service also pays much less than lawyers can earn in the private sector. I see no reason why the state - with all its inbuilt advantages - should also have the best lawyers. But judges are supposed to be impartial. Perhaps we should be trying to recruit the best in the profession.

This is not, however, a plea for higher judicial salaries. You won't find me often pleading for more fleecing of the taxpayers. It is a plea for a more rational career structure.

In Britain, we have a specialist career track for judges. No-one comes in at the top of the profession and almost no-one ever leaves it. Specifically, judges are banned, for life, from ever practising again at the bar. There is an odd - and frankly puny - argument put forward for this. What if a former judge was to appear before one of his old colleagues as a barrister? Might he not get favorable treatment? Or be thought to? But if judges cannot be trusted to be impartial, or to recuse themselves when they cannot, then what are they for? Does no judge ever have an ex-colleague from his days at the bar appearing before him? Hint: yes, pretty much every day.

In the US people move into and out of the judiciary all the time. At least two US Senators are ex-judges. The Attorney General of the US is an ex-judge. The new Chief Justice, by contrast, has never been a judge before, and has mostly been a professor of law.

Trial lawyers in the US take even bigger pay cuts (from their even bigger salaries) to become judges. Why? Because they know they can go back to the bar, where they will be even more effective than before, and command even higher fees.

So why would a million pound a year barrister take a job as a 92,000 a year judge? So he could return to the bar in a few years time and earn two or three million instead.

Simple, really. So why is it banned? Why do we not allow something that would give us better judges and better barristers?

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