Background of judges

By Legal Eagle

The appointment of judges in the common law adversarial system is always a controversial issue. There is a tendency for governments to choose appointments who are perceived as sympathetic to their political cause. This tendency is not confined to the more progressive governments, either, despite the fact that howls of “tokenism” seem to be louder for progressive appointments.

The first time I became aware of this phenomenon was in 1998 when the (conservative) Howard government appointed barrister Ian Callinan to the High Court of Australia. Callinan was the first Judge on the Australian High Court to be appointed to the role without serving as was criticised because he had not been a judge in a lower court. In addition, his appointment garnered controversy because of criticism of his behaviour in a Federal Court case released shortly after his appointment: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. Goldberg J made adverse findings about the decision to pursue a weak Trade Practices Act claim. His judgment was critical of both Callinan’s instructing solicitors (who were the defendants to the proceeding) and Callinan (who was not).

Appointments to judicial office are also controversial when the appointee is not a barrister. There was apparently shock in the Victorian legal community when Bernard Teague became the first solicitor to be appointed to the bench of the Supreme Court of Victoria in 1987. This was despite the fact that Teague was an experienced litigator. It was generally conceded afterwards that the fears were unfounded, and Teague was an excellent judge. He has retired from the bench, but now heads up the Royal Commission on the Black Saturday Bushfires. Andrew Greenwood, a Federal Court judge from Queensland, is another solicitor appointee who has acquitted himself admirably on the bench.

Likewise, in 2006, there was controversy when legal academic Marcia Neave was appointed to the Court of Appeal of the Supreme Court of Victoria. Neave JA has a long and distinguished record as a legal academic and as the foundation Chair of the Victorian Law Reform Commission. As Justice Ruth McColl outlines in this speech, Neave JA’s appointment was attacked as feminist “tokenism” by conservative commentators such as Andrew Bolt and some male barristers and QCs. I must confess that when Neave JA was appointed, there was a small guilty part of me which said, “She hasn’t actually practiced law.” But, mindful of the unwarranted furore which had engulfed Teague J some decades earlier, I suspended any judgment until I had seen how Neave JA performed. From what I’ve seen so far, Neave JA’s performance has been excellent.

Why am I discussing all these cases? Well, Barack Obama has just nominated Solicitor-General Elena Kagan as the next US Supreme Court Justice. Kagan will be controversial because she has not served as a judge on any court, although this is not without precedent in the US Supreme Court. The most recent appointment to fall in this category was former Supreme Court Justice and Chief Justice William Rehnquist (a Republican appointee). In fact, there have been 40 US Supreme Court judges who did not serve as judges before their appointment to the bench.

For those unacquainted with the US system, the President is empowered to appoint Supreme Court Justices according to Article Two of the United States Constitution but the appointment must also be with “the Advice and Consent of the Senate”. Thus the senate must vote on the appointment after a confirmation hearing. There is a strong history of partisan appointment in the US, and confirmation hearings are often very political. One of the most divisive confirmation hearings in recent times was that of Clarence Thomas, a conservative African-American judge nominated by George Bush Snr in 1991. Some of those opposing Thomas’ nomination professed a desire to “bork” him (i.e discredit him in the mass media in a way reminiscent of the campaign against Regan Supreme Court nominee Robert Bork).  Later, during the confirmation hearing, allegations of sexual harassment were made against Thomas by a former colleague, Anita Hill. Things got very ugly, with Thomas saying to the Senate Committee:

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.

Thomas was confirmed by the Senate with a 52 to 48 vote, the narrowest margin for approval in more than a century.

Obama’s first nomination to the Supreme Court was not without controversy, either. As I have discussed here, Sonia Sotomayor had expressed views in a speech that as a Latina woman, she made better judgments than white men which led Republicans to suggest she was an inappropriate candidate. My own opinion is not that her judgment is necessarily better – it is different. But difference and diversity on the judicial bench is a good thing: we don’t want a cabal of judges who represent only one particular group in society.

Nonetheless, despite the benefits of diversity, one of the criticisms of appointing someone who hasn’t sat on the bench before is that it’s hard to know where they stand on various issues, although WSJ law blog has had a go at compiling a brief profile of Kagan, taken from the Senators’ questions before she was confirmed as Solicitor-General last year. She seems generally to be regarded as moderate. Of course there’s comments to the post speculating about her single status, just as there were similar comments about Sotomayor (gee I hate that, there’s a whole raft of revolting presumptions there).

Is it a problem that Kagan’s employment history is mainly academic? As I confessed above with regard to Neave JA, it does worry me slightly when someone does not have much history in practice. My own point of view about the law has been greatly influenced by my time in practice. On the other hand, perhaps it’s good to have someone who doesn’t carry all that baggage. As an aside, I can’t see how a person could be a successful trial judge without having a solid background in litigation (whether as a barrister or as a solicitor) but for appeals I don’t think it’s as important, as long as the appointee is accustomed to weighing up conflicting arguments and reading huge volumes of material.

My account of the Australian judges above shows that we lawyers have to be careful to assume that a legal academic or a solicitor can’t do a good job as a  judge. Kagan is an academic, but she may well be a good judge. We’ll just have to wait and see.

Still, I do wish there was a way of appointing judges which was less partisan. That would lessen the feeling of unease for me. I want our judges to try to be as objective and fair as possible, and not to slavishly follow a particular party line.

Update: Pete Black at Freedom to Differ has more on the speculation about Kagan’s sexuality.

Update II: More from Pete.

30 Comments

  1. Peter Patton
    Posted May 11, 2010 at 9:23 pm | Permalink

    I don’t think it is even really appropriate to call her an “academic” at least not in the scholarly sense. She is actually an academic “administrator.”

    The appointment is a complete mystery and disgrace.

  2. Peter Patton
    Posted May 12, 2010 at 6:03 am | Permalink

    LE

    I am not prepared to be as optimistic as that. While we all know there really is no way of ever working out “the best wo/man for the job,” or that it is even necessary to get the very best, the highest court in any land must be regarded with deep respect if not awe by the citizenry. And that means a faith that these judges are so learned in the law, that we will have faith in their decision-making even if it does not go our way, and that we have the sharpest team balancing the various arms and powers of governance.

    The other objection is a more parochial and professional one. Given that outside say Physics, Maths, and maybe Neuroscience, and a few others, the elite Law schools attract the very brightest, most academic, most educated tranche of students. They are very competitive, many sweat for decades to be awarded the top honors and rightly appointed to the top positions, especially the Supreme Court. What this completely inexplicable reward of relative mediocrity will do to the confidence and faith of all those truly talented and deserving is hard to say.

    Imagine what truly outstanding legal scholars like Kathleen Sullivan must be thinking!

    Sullivan, a former professor at Harvard, then Stanford, then Stanford Dean. Oh, and yeah, she is a named partner in an appellate litigation law firm. She has over 200 academic publications and Supreme Court appearances.

    Oh, and you want diversity? Not only is she a she, but she is a she-on-she, she. I’m sorry, but in 2010, a white lesbian trumps a hetero Latina anyday!

  3. Patrick
    Posted May 12, 2010 at 7:04 am | Permalink

    PP, in case you missed it, there is considerable speculation that Kagan herself is in fact a lesbian.

    Which is the real reason why her nomination may just get much more tricky for Obama than he expected. The fact is, the vast majority of conservatives are like me, and don’t really care about other people’s sexual preferences. As it happens I don’t care, specifically, if Supreme Court judges are gay straight blended Jews black muslim Catholic or WASP (ok, I actually am a bit bigoted against Islam, I’ve never actually heard of a top-notch muslim scholar or lawyer so I would rather that a candidate came from the far deeper pools of Catholic, Protestant agnostic or Jewish, or even atheist!).

    But Obama cares, a lot. ‘Personal experience’ was his defining characteristic for both Roberts (he voted against him for what Obama considered a lack thereof) and Sotomayer (he nominated her for hers).

    So by big O’s own defining characteristic of a SC judge, Kagan’s sexuality is a big deal. Especially if she is concealing it.

    To quote Tim Maguire: My Bold Prediction – Ms. Kagan is either outed or out before she gets to the hearings. Her withdrawal announcement will be awkward, since she can’t say she wants more time with her family. But we won’t start her hearings with this issue unresolved.

    PS: on the basis of Eugene Volokh saying so, let alone of her making Dean of Harvard Law, I am happy to accept that she really is quite a smart lawyer. Apparently one of those few articles is the sixth most cited law review article of the past decade! In fact my wholly vicarious impression of her is that she would be a perfectly good Supreme Court judge, just one I would disagree with a lot.

    (For EV’s list of publications see here, and scroll down…I think this list ignores his pre-law computer science publications).

    For a final comment, try this:
    The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

  4. Patrick
    Posted May 12, 2010 at 7:07 am | Permalink

    I hadn’t seen LE’s comment. I wish there was an edit function. To be honest I don’t think she is a mediocre candidate, and IIRC Kathleen Sullivan was never a goer since IIRC she is not hot on executive power. Since there is currently a strong bi-partisan consensus on the value of executive power, libertarian-/civil liberties-minded candidates are on the nose…

  5. Peter Patton
    Posted May 12, 2010 at 7:11 am | Permalink

    And there is Harvard’s Elizabeth Warren. What would be great about her is that she is one of the global leaders in Empirical Legal Studies. Her quantitative skills would be unprecedented for a SC justice.

    Oh yeah, and she currently chairs the TARP, which oversees the gazillions doled by Obama to Wall Street! Therefore, she’d have buckley’s really.

    http://www.law.harvard.edu/faculty/directory/index.html?id=82

  6. Peter Patton
    Posted May 12, 2010 at 7:15 am | Permalink

    Interesting comparison with Australia. Not a word was said about our most recently appointed HC judge being a lesbian.

  7. Peter Patton
    Posted May 12, 2010 at 7:26 am | Permalink

    LE

    That’s why I was careful to write “relatively” mediocre. 😉

  8. Peter Patton
    Posted May 12, 2010 at 7:34 am | Permalink

    Patrick

    The Harvard/Yale cabal in the US is incredible isn’t it? It is far, far, far more pervasive than the Oxbridge thing in the UK. Given that the US is so much larger than the UK, and that the US has more than a handful of truly supreme educational institutions, the H/Y dominance is quite creepy.

    Then again, knowing a little about how Americans choose their colleges and grad schools, those who are motivated by power and position, will always choose H/Y if given the opportunity. Those who are more motivated by academics might choose from any of the top 10 or so, particularly Princeton, Chicago, MIT, and of course the elite liberal arts colleges – Swarthmore, etc.

  9. Peter Patton
    Posted May 12, 2010 at 7:41 am | Permalink

    LE

    I mean, Ms. Kagan is far more spectacularly accomplished than I could ever even dream of. 😉

  10. lilacsigil
    Posted May 12, 2010 at 9:55 am | Permalink

    In the Supreme Court, in particular, I don’t really see a problem with having a single judge coming largely from an academic/administrative background. This is the place where a variety of pathways and a variety of people is of vital importance. As Patrick points out at #5, the narrowing of experience by selecting all judges from just two universities is of much greater concern, and something that is likely to be a self-perpetuating problem when all your leading politicians and judges hail from the same place.

  11. AJ
    Posted May 12, 2010 at 10:08 am | Permalink

    “The Harvard/Yale cabal in the US is incredible isn’t it? It is far, far, far more pervasive than the Oxbridge thing in the UK. Given that the US is so much larger than the UK”

    Also the the number of undergrads those institutions admit. All of the ivy league put together would have fewer undergrads than the university of sydney.

  12. TerjeP (say Taya)
    Posted May 12, 2010 at 12:01 pm | Permalink

    Each state government should nominate a candidate and the winner should be picked by a lottery. In the US the states could nominate and a short list could be picked by lottery and congress could pick from the short list. This would remove a lot of the politics.

  13. Peter Patton
    Posted May 12, 2010 at 12:17 pm | Permalink

    AJ

    Harvard admits 1,600 undergrads each year, from about 30,000 applicants!!! And all for a lazy US$50,000 per year, or $200,000 for a fricking B.A.

  14. Posted May 12, 2010 at 12:38 pm | Permalink

    And all for a lazy US$50,000 per year, or $200,000 for a fricking B.A.

    Well, that certainly would be motivating to get a return …

  15. Peter Patton
    Posted May 12, 2010 at 12:45 pm | Permalink

    Lorenzo

    The terrible bind is that it virtually FORCES the graduates into investment banking and management consulting in order to pay back the huge student loans they have taken out.

    However, an amazing development has taken place over the past 5 years. With Princeton first off the blocks abolishing all loans to poor kids, to be replaced with NO TUITION FEES WHATSOEVER!

    This was matched by Harvard, and I’m not sure how many others. Now, they tend to have a sliding scale for tuition depending on parents wealth/income.

  16. Peter Patton
    Posted May 12, 2010 at 12:56 pm | Permalink

    Terje

    You are kidding! OMG. I have found another one. I have been a huge fan of sortition for years now, ever since taking a 3 semester sequence of ancient Greek history. Of course those 3 semesters also taught me, things to avoid.

    I would like to see things like voting and jury duty rebranded as civic duties/obligation not rights. And that would mean beefing up all citizens from a young age with civic education preparing them for the day when they will be chosen by lot to fulfill some civic function for a limited period of time.

    As a libertarian, I am sure you would run a mile from my compulsion model, but given how lonely it is the sortition camp, I would be more than prepared to compromise. 🙂

  17. Posted May 12, 2010 at 1:16 pm | Permalink

    On a different point, you observe that “Callinan was the first Judge on the Australian High Court to be appointed to the role without serving as a judge in a lower court.” I don’t think that is quite true.

    I’m not sure how many High Court judges were appointed without serving as a judge on a lower court, but a few others spring to mind, including Barwick, Dawson, Aickin, Murphy, Latham, Evatt, and possibly others.

  18. Patrick
    Posted May 12, 2010 at 2:05 pm | Permalink

    I can confirm PB’s comment that your recollection is wrong, or your lecturer was a disgrace. What Court did Sir Owen Dixon serve on prior to the High Court, ffs?

    I would estimate that in Australia it would be almost 50-50. I believe that Kitto, Rich and Starke could be added to your list, although I am not a legal academic and haven’t checked so I could easily be wrong on those counts.

    The Ivy League/Oxbridge thing is not so unusual. France is very similar, for example.

    The real thing is that once upon a time it was, at least, an ‘Ivy League’ phenomenon. Now it is just a Harvard/Yale thing.

  19. munroe
    Posted May 12, 2010 at 8:41 pm | Permalink

    People seem overly impressed by the fact that she has a bit of an academic record. It’s not like she’s a great thinker; as academics go she’s really nothing special. Nor is she a great litigator nor a great judge. It seems like if there’s enough cheap glitter sprinkled all over her she’ll shine.
    By the way, I take exception to this line:

    “But difference and diversity on the judicial bench is a good thing: we don’t want a cabal of judges who represent only one particular group in society.”

    Judges aren’t there to represent people, they are there to interpret the law. There should be diversity only to the extent that great, analytical, hard working minds reach honest differences of opinion about how it should be interpreted. The supreme court should be the one place – if there is any such place at all – where the law is paramount, and sectional interests are brushed aside.

  20. Nick Ferrett
    Posted May 18, 2010 at 6:53 am | Permalink

    Latham, Barwick and Evatt were all appointed directly to the High Court. So were Aickin, Murphy and Gaudron.

  21. Posted May 19, 2010 at 7:42 am | Permalink

    French CJ, from the bar to the federal bench without taking silk, then straight to CJ of the HCA. I don’t really have a point, just noting another less than conventional path taken. I think he’s pretty good, and his reasoning on ‘good faith’ in Heggarty while at the Federal Court was nuanced and sensible.

    Is all.

  22. Owen Dixon
    Posted May 22, 2010 at 6:27 pm | Permalink

    @25

    Well, ffs, I was an acting judge on the Supreme Court of Victoria…

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  1. […] This post was mentioned on Twitter by searchtempo, Eoin O'Dell. Eoin O'Dell said: In light of the Kagan nomination, skepticlawyer provides an interesting Australian perspective http://bit.ly/amikm8 […]

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