Choosing Judges

By Legal Eagle

I’m not a fan of electing Judges. Why not? Well, it always seemed to me (just from watching student politics) that often the kind of people who wish to be elected to public office are not necessarily the kind of people you want to be in that kind of a position. This is a generalisation, of course, but I think honourable selfless politicians are a rarity. When the Republican question was still a live issue, I had qualms about the notion of a democratically elected President for similar reasons.

I have always wondered if there was a fairer means to appoint judges. In relation to the High Court, at least, I believe that the present system operates so that the Attorney-General selects a suitable candidate (in consultation with various legal bodies). This has its advantages and disadvantages. The advantage is that because there is no need to campaign or apply, an excellent yet unassuming person can be selected to become a Judge – the kind of person who is not “popular” or “showy”, just good at his or her job. The disadvantage is that a person could be selected for political allegiance rather than merit.

The UK has instituted a Judicial Appointments Committee whose role is to select judicial office holders. Apparently, anyone wishing to become a judicial office holder now must apply to the Committee, and the Committee will then determine the best applicant and make a recommendation to the Chancellor. It’s an interesting idea – a heck of a lot better than electing a judge to office! So it was with interest that I read two articles in The Australian recently, one in favour of a judicial appointments committee (also canvassing other issues), and the other against the idea of judicial appointments committee.

I am afraid that I am nasty and cynical. For this, I thank my grandpa, who passed his nasty cynical streak on to me. I tend to think that instituting a selection committee of this type will not make judicial appointments any less political. I also worry that perhaps the excellent yet unassuming candidate might not think to put himself or herself forward if there is an application process. I guess I’m thinking about this from a personal perspective…I’m not the world’s best self-promoter: I’m someone who hopes she’s noticed for the quality of her work rather than the quality of her self-promotion, so I naturally distrust procedures where you have to sell yourself.

Perhaps it’s all a storm in a teacup anyway? I suspect that changing the system might just be window dressing, changing the appearance of what goes on rather than anything else. I refer to my post on the appointment procedures for Judges’ Associates. I am afraid that I tend towards Allen’s view that:

People who advocate this sort of appointments commission for judges have to pretend that that the judges do is in no way political. They also have to pretend that such appointing commissions are themselves wholly apolitical. Both assumptions are feeble. In fact, if you tell me what sort of judge you want, I feel confident that I could appoint a commission of sincere, honest, well-meaning people who would appoint just the sort of judge you wanted.

He points out that there is no way for the public to express dissatisfaction with a commission for their choice of judge (although I tend think the chances of a government being elected out because of a poor choice of judge are slim to none).

In any case, it’s an interesting concept. What do readers think?

2 Trackbacks

  1. By Attack of the clones « The Legal Soapbox on August 12, 2007 at 2:19 pm

    […] formal and transparent process, including a judicial selection committee. I’ve written about this issue before. I suspect that if the government wants a certain type of judge appointed, they can stack the […]

  2. By skepticlawyer » Background of judges on May 11, 2010 at 9:07 pm

    […] 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 […]

Post a Comment

Your email is never published nor shared. Required fields are marked *