In the past two decades, many common law states have tweaked, modernized, or radically upended the judicial institutions passed to them from Britain. Australia ...
JUDICIAL SELECTIONS REFORM IN COMPARATIVE CONTEXT RON LEVY †
I. INTRODUCTION: THE REFORMING COMMON LAW WORLD In the past two decades, many common law states have tweaked, modernized, or radically upended the judicial institutions passed to them from Britain. Australia, Canada, Ireland, Israel, New Zealand, and South Africa, have seen changes. And the countries of the United Kingdom recently aggressively remodelled their own court system. Judicial selection draws special attention in most of the reforming states. New independent selections bodies with elaborate formal decision-making procedures are popular additions. Accountability and democratization are the watchwords of selections reform. And the notion that a modern state necessarily features a separation of powers in its institutions animates many specific changes—often in response to the expanding reach of judicial powers. 1 Canada’s late populist reform advocate, Dugald Christie, for one, saw an independent judicial appointments and regulatory body as key to the sensible and democratically legitimate regulation of judicature in Canada. Christie’s idea was an “Upper House of Justice”, a democratic body that would replace the Senate and “govern the federal justice system and lawmaking on justice issues”. 2 Change in the common law world, to be sure, parallels a wider global wave of reform in judicial selections. But among the common law countries, change—however kaleidoscopic and disconnected—is change amid a still †
Ph.D. candidate, Osgoode Hall. I am grateful for valuable discussions with judicial selections participants and close observers in several countries: former Prime Minister Sir Geoffrey Palmer of New Zealand; Christopher Forsyth and Sir Derek Oulton, in Britain; former President Aharon Barak of the Supreme Court of Israel, and Alon Harel of Israel; Australians Melissa Perry, Q.C., and Justice Ronald Sackville, Chair of the Judicial Conference of Australia; Elizabeth Dewar, Judge William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, and Reva Siegel in the United States; and, in Canada, Harry Arthurs, Dean Philip Bryden, Peter Hogg, Bruce Ryder, federal Judicial Appointments Committee member Alan Gold, and Ontario Judicial Appointments Advisory Committee member and former Chair Douglas Grenkie. This article was researched and written with help from a Social Sciences and Humanities Research Council Canada Graduate Scholarship, and during academic visits to Yale University and the University of Cambridge. 1 See e.g. Interview of Sir Geoffrey Palmer (22 March 2007) communication on file with author. 2 D. Christie, Blueprints for Access to Justice (2005) [unpublished, archived at University of British Columbia Law Review].
Electronic copy available at: http://ssrn.com/abstract=1967455
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broadly common institutional and legal framework. This article looks comparatively at reforms of selections to high appellate courts, focusing on lessons from several common law jurisdictions. These lessons can be helpful to reformers in common law countries, such as Canada, where selections reform is still underway. In Canada, commentators often look comparatively to American models and histories of judicial appointment. 3 The American reform experience—begun generations ahead of transformations elsewhere— is instructive. But understanding the effects of innovations calls for a broader comparative project. Reformers should look widely for data points about what has been attempted in the past, and about what has worked or what has not. There have been just a handful of comparative studies on selections. The American authors Epstein, Knight, and Shvetsova, noting that “[w]e know practically nothing about how the various mechanisms for the appointment and retention of jurists elsewhere operate”, have taken it upon themselves to examine the point in detail. 4 Additionally, a recent volume edited by Peter Russell and Kate Malleson draws together contributions from across the globe. 5 But the latter work attempts only limited synthesis. And no work specifically examines reforms and their consequences. Nor does any specifically focus on the problems of common law judicial appointments. Epstein, Knight, and Shvetsova present a careful and illuminating study, but one that ranges rather indiscriminately across common law and civilian systems, with lessons sometimes more interesting than concretely instructive to common law reformers. 6 Most importantly, no work has concentrated on the relatively intangible or cultural aspects of reform of the institutions of appellate court appointments. Epstein, Knight, and Shvetsova are concerned with formal changes and mostly formal effects—such as the average lengths of time served on a court given a particular rule about judicial retirement. 7 In contrast, the cultural consequences of institutional change are chaotic, and getting to a desired endpoint—such as a more impartial judiciary—is “a complex dynamic process 3
See e.g. ibid. Lee Epstein, Jack Knight & Olga Shvetsova, “Comparing Judicial Selection Systems” (2001) 10 Wm. & Mary Bill Rts. J. 7 at n. 15. 5 Kate Malleson & Peter H. Russell, eds., Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (Toronto: University of Toronto Press, 2005). See also David A. R. Williams, “The Judicial Appointment Process” (2004) 2004 NZ Law Review 39 (focusing mostly on Australia, New Zealand, and the United Kingdom). 6 The two systems differ, for example, in that civilian judges typically assume their posts without prior experience as lawyers, based on a formal course of study and examinations: William Tetley, “Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified)” (2000) 60 Louisiana L. Rev. 677 at 701-702. 7 Epstein, Knight & Shvetsova, supra note 4. Note that the authors are clearly aware of the complex cultural factors beyond the scope of their study (e.g. “no formal retention rule can guarantee judicial independence” at 31). 4
Electronic copy available at: http://ssrn.com/abstract=1967455
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of structural change”. 8 Institutional reform seldom produces predictable cultural changes—whether in the broader public, or more narrowly within courts and judicial selections bodies whose decision-making cultures help determine how they decide. As Richard Pildes notes, law can interact in … complex and subtle ways with public and private understandings, norms, and ideals …. [S]ome of these effects … can be unforeseen and unappreciated … [C]ultural consequences are a significant, but frequently ignored, dimension of public policy [and] the cultural consequences of the means selected to pursue … instrumental goals can undermine their realization. 9
Values such as the impartiality or independence of judges and judicial selectors “cannot be legislated or voted on” at a stroke. 10 Indeed, reform appears to produce unpredictable cultural consequences especially in institutions, such as selections bodies, charged with resolving potentially politically contentious questions. 11 Thus “[i]nstitutions and procedures that may appear on paper to lend themselves to manipulation of the selection system by politicians are often found in systems in which it is generally accepted that judicial independence is strong, and vice versa”. 12 In pointing to how unpredictable or counterproductive reform can be, I do not mean to challenge the idealism of reform advocates. I mean, instead, to point to what can go wrong in order to avoid some common pitfalls. The solution to the problem of unintended cultural consequences is not necessarily to give up on reform. 13 We might instead try closely examining reform experiments of the past; erecting guideposts in the field can go some way toward helping reformers avoid consequences they do not intend. 14 In this 8
Gerald M. Meier, Biography of a Subject: An Evolution of Development Economics (New York: Oxford University Press, 2005) at 13. Development theorists such as Meier are probably the scholars most familiar with the frustrations of attempting institutional change. 9 Richard H. Pildes, “The Unintended Cultural Consequences of Public Policy: A Comment on the Symposium” (1991) 89 Mich. L. Rev. 936 at 938-39. See also Meier, ibid. (Institutional change “depend[s] on the economic structure, institutions, political regime, administrative capacity, and history of the particular country”). 10 Meier, supra note 8 at 9 (on projects of institutional change generally). 11 Ron Levy, “Judicial Selection: Trust and Reform” 40 U.B.C. L. R. 195 at 213-214 [forthcoming in 2007]. 12 Malleson & Russell, supra note 5 at 5. 13 Christie outlines several previously successful reforms, including some dramatic innovations: Christie, supra note 2 (citing 19th century reforms to the justice systems of the United Kingdom and Canada). 14 Some work of this kind has already begun on judicial appointments, especially in respect of making courts more representative—for example, accommodating the views of women and minorities and selecting more judges from these groups. See e.g. Rachel Davis & George Williams, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” (2003) 27 Melbourne U.L. R. 819.
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article, I rely on the recollections of participants in judicial appointments from across the common law world to examine some of the consequences of reforms. The step from past observation to future prescription is inevitably tenuous, as is any project analyzing cultures of decision-making. Accounting for culture sometimes “frightens scholars”. 15 But relying only on tangible factors in the success of appointments regimes simply means excluding too much relevant information. Institutional cultures might defy ready description and quantification. However, the view that we can understand successful institutions without understanding their informal customs and practices seems, appropriately, to be on the wane. 16 Research for this article, therefore, relied on those best placed to offer detailed views on the intended and unintended cultural effects of reforms. Interviewees included judges, judicial selectors, and a Prime Minister—participants in judicial selections whose experiences can be helpful to reformers in other countries committed to innovation in selections. Given the diversity and complexity of these experiences, no comparative project of this type can be comprehensive on its own. And, to be useful, any such project should avoid ranging too broadly. This article is meant not to be comprehensive, but rather to draw a sketch of a selection of issues that firsthand participants and close observers flag from their experiences with reform. I focus on two kinds of reform. Each exemplifies the increased formality and “objectivity” that reformers often urge for judicial appointments: (1) imposing a separation of powers between the executive and legislature, and potentially other powers; and (2) holding public hearings and setting other conditions for judicial office. Several other boundaries narrow the scope of this survey still further. First, most of the reforms covered affect a state’s highest courts. Additionally, each first appears in approximately the past two decades. And finally, each occurs in a state that is, by most accounts, among the most economically and politically developed in the common law world. These limits necessarily exclude a great deal. The countries covered are Australia, Canada, Israel, New Zealand, the United Kingdom (especially England and Wales) and the United States. Major reform in the United States last occurred in the middle of the twentieth century; 17 however, the United States has undergone some more recent changes, and a comparative piece making no mention at all of the rich American experience would be remiss. I therefore draw on American developments, but do so limitedly, reserving space for the article’s broader focus across several countries. In addition, less 15
David S. Landes, The Wealth and Poverty of Nations (New York: W.W. Norton & Company, 1998) at 516-17. 16 Ibid. 17 John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore, MD: The Johns Hopkins University Press, 1995) at 92-110, 143.
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developed common law countries have implemented intriguing changes to judicial appointments; however, these states’ political cultures are generally significantly dissimilar to those of the countries reviewed. 18 In Part II, I begin with an overview of recent changes across several common law jurisdictions. Later, in the main part of this paper, Part III, I consider particular reforms and their consequences. II. RECENT REFORMS OF APPOINTMENT PROCEDURES TO THE HIGHEST COMMON LAW COURTS Many developed common law countries have significantly retooled their approaches to judicial appointments in recent decades. The table below indicates where the covered countries have made modifications. Two forms of innovation meriting special mention see: (1) at least partially independent bodies exercising advisory or direct appointments powers; 19 and (2) open, rather than in camera, hearings. Some of the most notable innovations include those in the United Kingdom. For many years, the Lord Chancellor oversaw court administration in England and Wales, including appointments. In 2005, the Constitutional Reform Act discontinued this function of the Lord Chancellor and also replaced the Law Lords of the House of Lords with a new highest judicial body for the United Kingdom, the Supreme Court of the United Kingdom. 20 With the new Court comes a new judicial appointments procedure run by an independent standing commission. Members are drawn from the commissions that now also choose judges for high courts in England and Wales, Scotland, and Northern Ireland. The reforms usher in a deliberate, clear, and rational set of procedures—such as establishing fixed compositions of legal and lay commissioners—replacing the former appointments system premised on longstanding and elaborate informal customs. This is a marked departure for a legal and political culture that commonly venerates the customary rules permeating its institutions—the “certain layers of meaning that are now lost in
18
For example, Pakistan’s recent bloody violence and contestation over the office of the Chief Justice is a development unfamiliar in the covered states. See e.g. Lman Masood & Carlotta Gall, “Pakistan’s Suspended Justice Tells of Facing Down Musharraf” The New York Times (30 May 2007) A3. See also more generally Masood Khan & Niaz A. Shah, Working Paper: Judicial Appointments in Pakistan (Belfast: Queen’s University, Institute of Governance, Public Policy and Social Research, 2003). Note that my exclusion of some developed democratic states, including the Republic of Ireland, reflects only the practical problem that judges and selectors were relatively not forthcoming as interviewees. 19 For the purposes of this typology, a parliamentary committee can be an “outside body”; only appointments powers directly exercised by the executive and/or legislature do not similarly qualify. 20 Constitutional Reform Act 2005 (U.K.), 2005, c. 4.
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the past” and the “[c]uriosities, anomalies and contradictions … woven into [the] tissue” of the ceremonies of governance. 21 Developments elsewhere include Canada’s recent experiment with a brief, open, live-broadcast, ad hoc multi-party hearing that saw MPs lightly grill Rothstein J., the Prime Minister’s candidate for the Supreme Court of Canada. 22 Here, too, a number of authors expressed concern over the departure from established informal norms. 23 Notably as well, Australia’s system has evolved since the late 1970s to include broader classes of persons consulted in the process, including agents of the several states—reflecting the country’s federal structure. COUNTRY
Australia (previously)
Australia (various reforms)
21
Role for body outside of executive No; federal Attorney General recommends and Cabinet appoints Consultation with Attorneys General of the states added 1979. Consultations with judges and legal experts added in late 1990s.
Outside body: advisory or formally binding N/A
Outside body: role for public or legislators
Other developments
N/A
Public hearings or closed procedings Closed
Advice
No
Closed
Recent advent of interviews.
Lord Longford, A History of the House of Lords (Gloucestershire: Sutton Publishing, 1999) at 10. 22 For further description and analysis see Peter W. Hogg, “Appointment of Justice Marshall Rothstein to the Supreme Court of Canada” (2006) 44 Osgoode Hall L.J. 527; Levy, supra note 11. 23 See e.g. Canadian Press, “Keep Politics Out of Top Court McLachlin Urges” The Globe and Mail (3 February 2006), online: The Globe and Mail (in a paraphrase of the Chief Justice: “The existing appointment process is working just fine and should not be politicized”); Lorne Sossin, “Don’t Leash Our Judges,” Editorial, The Globe and Mail (4 February 2004) A19; Ed Ratushny, “Confirmation Hearings For Supreme Court of Canada Appointments: Not a Good Idea!” (Paper presented to the Judicial Appointment in a Free and Democratic Society: The Supreme Court of Canada, 19 April 2004, online: University of Toronto, Faculty of Law at 2.
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Canada (previously)
Canada (2006 reforms)
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Before 20042005: No. 2004-2005: Some consultation with Members of Parliament. Questioning of candidate by Members of Parliament.
England & Wales (previously) England & Wales (2005 reforms)
No; Lord Chancellor runs process. Commission
Israel (previously)
Attorney General nominates, legislature appoints
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Advice; Prime Minister (instructing Governor General) selects.
Before 20042005: No. 2004-2005: Members of Parliament.
Closed
Advice; Prime Minister (instructing Governor General) selects. Strongly persuasive advice. Strongly persuasive advice.
Members Parliament
Public
N/A
of
No
Closed
No
Closed
Another commission appoints justices of the Supreme Court of the United Kingdom
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(previously) United States (various changes)
Senate input; Senate votes 1970s: Unilateral nomination by the President, no longer with strong Senate input. 2000s: End of near-unanimous confirmation by Senate.
N/A
N/A
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Public (mid-20thcentury)
Table: Judicial Selections Reforms in Selected Common Law States 24 III. THE CONSEQUENCES APPOINTMENTS
OF
REFORMS:
“OBJECTIFYING”
The table above shows reforms rolling out across the jurisdictions of the common law world. There is some consistency throughout: The majority of reforms are geared toward making judicial appointments more objective—or what Pildes calls, in a similar context, “objectifying” a process and thereby “replacing more informal modes” of decision-making. 25 The literature on trust sometimes distinguishes between objective and subjective models of trust. 26 The objective variety “relates to rules, procedures, and ‘good government’”. 27 Institutional architects hoping to facilitate trustworthy decision-making of this kind focus, for example, on “transparency in decision making”. 28 Objective trust has a “more structured form and [is] relatively external and objectified”. 29 In contrast, the subjective aspect of trust is more civic than 24
Table sources include certain interviews conducted for this work (see especially Palmer, supra note 1; and Fletcher, Oulton, Forsyth, Sackville, “Interview”, Hogg, “Interview”, below notes 35, 45, 55, 58, 99). See also generally Justice Ronald Sackville, “Judicial Appointments: A Discussion Paper” (2005) 14 Journal of Judicial Administration 117 [hereinafter “Judicial”]; Malleson & Russell, supra note 5; Khan & Shah, supra note 18; Epstein, Knight & Shvetsova, supra note 4; Constitutional Reform Act, supra note 20. 25 Pildes, supra note 9 at 968. 26 For simplicity, I bring several ideas together here under the terminology of “trust”, especially including “trustworthiness” and “social capital”. The latter refers to networks of mutual relations in a society that, among other things, help to solidify mutual attitudes of trust and facilitate social cooperation. Trust is a lasting expectation of the good conduct—the trustworthiness—of another. Karen Jones, “Symposium on Trust: Trust as an Affective Attitude” (1996) 107 Ethics 4 at 5; Francis Fukuyama, Trust (New York: Basic Books, 1995) at 26; Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Touchstone, 2000) at 19-22; Meier, supra note 8 at 131-32. 27 Meier, ibid. 28 Ibid. 29 Ibid.
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governmental—“aris[ing] from social interaction in clubs, associations, networks, and hierarchies”. 30 These norms of trust are “internal and subjective” but reflect “broader shared meanings within society and [have] the merit of helping to create and maintain an environment in which mutually beneficial collective action becomes expected and thus more likely”. 31 For judicial selections, adopting more objective approaches can mean some or all of the following: granting roles to representatives of diverse constituencies, such as women, visible minorities, and provinces or regions; setting out clearer criteria for what is required of a judge of the highest courts of appeal; expanding public influence over the process; and taking a government’s power to appoint out of just a few hands, such as those of a Prime Minister and Attorney General. Dugald Christie speaks for many Canadian reformers who complain that [t]here is no mechanism for public scrutiny of the appointment of judges as there is in the United States. Consequently, we have no check on the present system of patronage.… What is required is a political body, a forum that can devote the time required and command the political power to bring about far-reaching and effective legal reform in all aspects of the law. 32
A number of other reformers who advocate objectifying appointments similarly reference American approaches and view these favourably. 33 This is surprising on one level. David Strauss and Cass Sunstein speak for many others, especially American commentators like themselves, who regret the directions that high-level appointments in the United States have taken: “It is difficult to find anyone who is satisfied with the way Supreme Court Justices are appointed today”. 34 By many accounts, the American approach of presidential nomination, followed by live-broadcast Senate hearings and confirmation voting, has helped shape cultures of judicial selections that are
30
Ibid. Ibid. 32 Christie, supra note 2. See also e.g. J.E. Penner, “Common Law Cognition and Judicial Appointment” (2000) 38 Alta. L. Rev. 683 at 706-07; Peter Russell, “Reform’s Judicial Agenda” (1999) 20 Policy Options 12 at 13; generally Jacob Ziegel, “Merit Selection and Democratization of Appointments to the Supreme Court of Canada” (June 1999) 5:2 Choices 1 (Institute for Research on Public Policy); Allan Hutchinson, “Let’s Try Democracy When Choosing Top Judges” The Globe and Mail (3 March 2004) A19; Richard Devlin, A. Wayne MacKay & Natasha Kim, “Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a ‘Triple P’ Judiciary” (2000) 38 Alta. L. Rev. 734; K.D. Ewing, “A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary” (2000) 38 Alta. L. Rev. 708; generally Ratushny, supra note 23. 33 Christie, supra note 2. Christie, to be sure, makes passing reference to problems of the American system. See also e.g. Ziegel, ibid. at 15; Russell, ibid. at 14. 34 David A. Strauss & Cass R. Sunstein, “The Senate, the Constitution, and the Confirmation Process” (1992) 101 Yale L.J. 1491 at 1491. 31
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sharply polarized. 35 The two major political parties adopt opposite positions in the Senate over judicial candidates who themselves rigidly occupy positions at the extremes of the ideological spectrum. 36 The United States is traditionally the common law jurisdiction most tolerant of extensive political involvement in judicial selections; 37 however, commentators now increasingly read the country’s appointments culture as dangerously political, and as incompatible with robust respect for the rule of law. Justice Paul L. Friedman of the United States District Court for the District of Columbia, like others, writes that “[t]he judiciary’s integrity and motives are now being seriously questioned in ways that I fear may ultimately undermine the rule of law”. 38 In the words of an Australian judge, “[p]olitical pressures can force people into a posture of attack or defence”. This can impact on the rule of law because a “judge may be drawn into … [the] conflict … [and] be stripped of the appearance of the impartiality which is essential to the public’s willingness to accept his or her authority”. 39 Is there is safe middle course? Can we make appointments more objective while avoiding the excesses of the American system? The rule of law is just one of several key pieces in the jigsaw puzzle of a liberal democracy’s legal and political cultures. Two others are trustworthiness and, more particularly, impartiality: the habit of a jurist to listen broadly to diverse ideas, to reason on this basis, and to avoid personal predisposition or other narrow bases for decision. 40 Still another related judicial trait is intellectual competence—a 35
See e.g. ibid.; Ratushny, supra note 23; Jonathan Remy Nash, “Prejudging Judges” (2006) 106 Colum. L. Rev. 2168; interview of Judge William A. Fletcher, United States Court of Appeals for the Ninth Circuit (7 June 2007) communication on file with author.
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precondition for deciding with trustworthiness and impartiality. 41 Safeguarding these several interrelated values in judges and judicial appointments is the focus of the remainder of this article. Under each heading to follow in this part, I consider how the values fare given judicial appointments reforms—especially including efforts to render appointments more objective. A sizeable school of scholars view many departures from established custom with regret. These scholars maintain that more is lost than gained when a new legalism and formality replaces old custom. However, whether this is true in practice, and where the proper balance between objective and subjective approaches should be struck, are questions perhaps best answered through the experiences of selections participants of the recent past. A. SEPARATION OF POWERS
In the context of appointments, adopting separation of powers principles can mean, at a minimum, the following: the appointments power of the executive should be shared or offset by legislatures or independent bodies 42 ; the states or provinces of a federation should play a role 43 ; and communities of lawyers and judges should not exercise undiluted power to promote members of their own ranks to judicial positions. 44 Should institutional designers favour such comparatively objective models of selections? Observers and participants cite past examples to make the case, alternately, for subjective and objective approaches. The case for each is generally clear; I lay these out, briefly, next. More complex are selections models mixing elements of the subjective and objective approaches, which I address subsequently below. 1.
ARGUMENTS FOR SUBJECTIVE MODELS
Selections participants and observers who favour the old system in England and Wales hold that the system functioned well and did so, most importantly, because the selectors were familiar with the practitioners of the bar. This made selectors specially aware of who among candidates for appointment would likely be trustworthy after assuming a position on the bench. Sir Derek Oulton, an interviewee for this article, explains that under the old approach
41
In addition, issues of federalism and democratic legitimacy sometimes help shape the contours of reforms: Attorney General Irwin Cotler, “Proposal for the Reform of the Supreme Court of Canada Appointments Process” (Speech for The Honourable Irwin Cotler, Minister of Justice and Attorney General of Canada, 7 April 2005), online: Department of Justice Canada . 42 Ibid. 43 Ibid.; Sackville, “Judicial”, supra note 24 at 118. 44 I focus on the latter aspect below in this part.
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advisors in the Lord Chancellor’s office divided the country into circuits. 45 Under a system Oulton himself devised and ran for many years, an advisory team prepared lists of people at the right age for appointment in the several regions. Candidates received a visit—a one-and-a-half hour meeting with an agent, or “Recorder”, of the Lord Chancellor—aimed at assessing the barrister’s integrity, and her or his ability as an advocate. Recorders also consulted broadly, soliciting information from fifteen to twenty members of the bar about a given candidate. After pooling the assorted reviews, the Recorders formed what they considered to be a reliable picture of the field. The Lord Chancellor received the final composite assessment and, on this basis, chose judges as vacancies arose. In Oulton’s view, the old system had the advantage of giving the Lord Chancellor a direct line to a large set of advisors who knew candidates well, having appeared with or against them in litigation, and who could therefore judge who was, above all, honest and trusted. 46 In New Zealand, successive governments have eschewed reforms such as those recently seen in the United Kingdom and in Canada. Indeed, even observers whose politics differ markedly from each other appear to agree that selections in New Zealand remain rooted in cultures of impartiality and respect for the rule of law. 47 Sir Geoffrey Palmer was the country’s Attorney General and later Prime Minister. An energetic reformer, Palmer introduced the New Zealand Bill of Rights Act 1990. 48 His comments offered for this article are worth setting out, then, for their surprisingly emphatic support of the status quo for appointments: The traditional method of judicial appointment in New Zealand has been that appointments to the higher Judiciary are made by the Attorney General. These appointments are never political. Overseas observers, particularly in the United States, find this an incredible statement, but it is true. … Judicial appointments are one example where I think Ministerial responsibility does work. I must say that in my view, Attorneys General in New Zealand take their responsibilities very seriously.… I cannot recall in my lifetime any Judicial Appointment to the Higher Courts being criticized publicly in New Zealand at 45 46
Interview of Sir Derek Oulton (29 January 2007) communication on file with author. Ibid.
47
See e.g. James Allen’s argument against major appointments reform in New Zealand, see “Judicial Appointments in New Zealand” in Malleson & Russell, supra note 5. As Palmer points out, “It is fair to say that Allan … was a rather ideological right wing academic. And the fact that he thinks the same way as I do on this issue is interesting…. [In addition] I was a Labour Party Attorney General. Paul East was a National Party Attorney General. Both of us have the same view about the undesirability of an Appointments Panel or Judicial Commission.” Palmer, supra note 1. 48
1990 S.N.Z. No. 109.
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all.… One of the features of the New Zealand political culture is its strong and robust legal system with good traditions. While we have a system of parliamentary supremacy, there is a lot of respect for the judges and the values of the rule of law
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patronage and exclusion under the previous system of appointments. 55 It is seldom clear what motivates a given appointment decision; nevertheless, “one would hear dark rumours. Under the old secretive system, well qualified people got nowhere. Able judges’ appointments were delayed because of extreme political views in their youth”. 56 Selections participants in some other jurisdictions more assuredly characterize patronage as widespread. One obvious case already described is that of the United States. 57 But patronage is also a pronounced feature of Australian selections, according to another interviewee, Justice Ronald Sackville, Chair of the Judicial Conference of Australia: “At present … the reality is that politics intrudes.” 58 Candidates for judicial office are rejected if they are “not sympathetic to the government’s political agenda or aspirations. This has been happening quite frequently in Australia.” 59 A former Chair of the same body asserts that circumstances are worsening: “There is growing evidence that the power of making judicial appointments is coming to be regarded by governments ... as a form of patronage and a source of influence that can be used to serve their short-term political interests”. 60 Political patronage is not the only problem ascribed to subjective selection approaches. Another potential drawback of giving public policy-making roles to elite networks is the loyalty that network members develop toward each other. Much like the defunct model in England in Wales, Ontario Judicial Appointments Advisory Committee members canvass lawyers about other lawyers, and judges about other judges. 61 One former Committee Chair, Douglas Grenkie, remarks that a problem with such discrete inquiries is that persons consulted are sometimes not forthcoming about their colleagues’ 55
Interview of Christopher Forsyth (15 January 2007) communication on file with author. To be sure, Forsyth is not a strong advocate of separate powers of judicial selection. 56 Ibid. (Forsyth elected not to “mention names”, though he was aware of specific cases.) 57 Supra notes 35 and 38. 58 Interview of Justice Ronald Sackville (10 July 2007) communication on file with author [hereinafter “Interview”]. 59 Ibid. 60 Justice Bruce McPherson, “Judicial Appointments and Education: Response from the JCA” (1999) 73 Law Institute Journal 23 at 25. There is also a risk of the established bar, lacking ethnic, socio-economic, and gender diversity, promoting its choices for the bench from among a similarly narrow range of candidates. While therefore relevant to separation of powers issues, the problem of diversity on courts is one that is well-covered in other works, and that I generally do not address. See e.g. Davis & Williams, supra note 14 at 834; Williams, supra note 6 at 48-54; Justice Claire L’Heureux-Dubé, “Outsiders on the Bench: The Continuing Struggle for Equality” (2001) 16 Wisconsin Women’s Law Journal 15; Dame Brenda Hale, “Equality and the Judiciary: Why Should We Want More Women Judges?” [2001] Public Law 489; Regina Graycar, “The Gender of Judgments: Some Reflections on ‘Bias’” (1998) 32 University of British Columbia Law Review 1. 61 Interview of Douglas Grenkie (22 March 2007) communication on file with author.
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flaws. 62 Consultees “don’t want to be the rat”, for example, against the candidate who “told off-colour jokes”. 63 As for the old system in England and Wales, whether it was an old boys’ club in its final days, and how exclusionary its appointments were, is debated. Rather than characterize the system as one run by an insular network of elites, some observers viewed the old advisory teams of the Lord Chancellor as cautious, diligent, and honourable—men and women motivated by their high regard for the justice system and by their sense of public service. 64 The case against the old system in England and Wales was therefore perhaps mixed. But selectors were undeniably largely unaccountable for their choices, which the Lord Chancellor—a powerful associate of the government in power—rendered in secret. Lord Falconer, who assumed the Lord Chancellor’s office with the arrival of Tony Blair’s Labour Party ministry in 1997, viewed the old system as steeped excessively in rumour and opinion. 65 This was viewed as sufficient cause to adopt dramatic changes. 66 Falconer spearheaded reforms implementing a more structured and putatively more objective approach, abolishing his own role as head of the judiciary in England and Wales in the process. 67 62
Ibid. Ibid. 64 Forsyth, supra note 55; Oulton, supra note 45. 65 Oulton, ibid. Oulton particularly notes that the “old boys” approach can potentially exclude women and people of colour. 66 Stephen Cretney, “Abolishing the Office of Lord Chancellor: The Question of Departmental Responsibility and some other Consequential Issues” (Paper presented to the Conference on Judicial Reform: Function, Appointment and Structure, Centre for Public Law, University of Cambridge, 4 October 2003), online: University of Cambridge Faculty of Law . 67 Ibid. Note that it is also common for reformers to argue for greater clarity and consistency in the substantive standards against which selectors assess candidates for judicial office. See e.g. Prime Minister Stephen Harper, News Release, “Supreme Court nominee to face questions from Parliamentarians” (20 February 2006), online: Office of the Prime Minister (on the need for clearer standards in Canada); Christie, supra note 2 (same); Malleson & Russell, supra note 5 (on the same in New Zealand); R. W. Gotterson, “The Appointment of Judges, (Paper presented to the Third Annual Colloquium of the Judicial Conference of Australia, 6 November 1998, online: Judicial Conference Australia (on the same in Australia); Davis & Williams, supra note 14 at 821 (same). While the separation of powers approaches noted in the present section make appointments more objective from a procedural standpoint, efforts to clarify standards cover the substantive side of objectifying appointments. The goal behind the latter is to take some appointments power out of the hands of individual members of government, who exercise subjective choices, and to invest much of the task in consistent, objective substantive formulas. But some interviewees and other commentators see further elaboration as substantially futile, given the subjectivity in judging who will be a good judge. See e.g. Palmer, supra note 1; Sackville, “Interview”, supra note 58; Lorraine Weinrib, “Appointing Judges to the Supreme Court of 63
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HYBRID SUBJECTIVE-OBJECTIVE MODELS
There can be a tension between the two types of trustworthiness—subjective and objective—that selections models can aim to develop. On the old model in England and Wales, for example, an established professional culture, centred around the national bar, aided judicial selectors in predicting the future: divining which picks for the bench would come to be trustworthy judges. In Oulton’s view, this is the more important form of trust—what he calls the “subjective and nuanced” variety. 68 We need, he believes, to focus on what lawyers and judges have to say about each other—which inevitably includes subjective opinion. 69 But the more objective approach of the new Commission focuses on securing the trustworthiness of the selections body itself, rather than on predicting the trustworthiness of the candidate. There is, then, a tradeoff: The commission, while perhaps more broadly representative and subject to more extensive checks against abuse, might nevertheless enjoy less predictive ability and be less competent at selecting trustworthy judges. Appointments by arm’s length commission can upend the old system’s cadre of selectors personally familiar with the candidates. Commissioners—now drawn from broader cross sections from the bar and ranks of government 70 — cannot make the same subjective determinations as to who will be trustworthy as a judge. 71 It is common to see an outright separation of powers as the best chance to eliminate patronage in selections decisions. As in other institutional design projects, “[w]e are commonly constrained to think in ‘either-or’ terms—the more of one the less of the other” in reforming judicial appointments. 72 But there is also a set of further and sometimes more nuanced reform Canada in the Charter Era: A Study of Institutional Function and Design” in Appointing Judges: Philosophy, Politics and Practice: Papers (Toronto: Ontario Law Reform Commission, 1991) 109 at 110. Indeed, most official instruments referencing the substantive criteria for selection rely on the broadest of generalities, such as “merit” itself: Constitutional Reform Act 2005, supra note 20, ss. 27(5), (8); Ziegel, supra note 32; Davis & Williams, supra note 14 at 821-36; Federal Judicial Appointments Personal History Form, reprinted in Andre Millar, “The ‘New’ Federal Judicial Appointments Process: The First Ten Years” (2000) 38 Alta. L. Rev. 616, App. IV; Cotler, supra note 41. Few of the additional terms used to describe judicial merit are more exact than “merit” alone: Weinrib, ibid. 68 Oulton, supra note 45. 69 Ibid. 70 Supra note 54. 71 Oulton, supra note 45. 72 Norman Uphoff, Learning from Gal Oya: Possibilities for Participatory Development and Post-Newtonian Social Science (Ithaca, NY: Cornell University Press, 1992) at 273. Not that some commentators suggest that, when formal institutions associated with objective trust are in place, subjective trust develops more readily: “‘[T]op-down efforts’ are usually needed to introduce, sustain, and institutionalize ‘bottom-up’ development of trustworthy and effective institutions”: Ibid.
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recommendations. Some call not for outright objectification and separation of powers, but for hybrids of objective and subjective approaches. To give a simple example, institutional designers can incorporate discrete inquiries of candidates’ colleagues coupled with formal application procedures and interviews. 73 This is the model adopted by bodies including the Ontario Judicial Appointments Advisory Committees. 74 On one hand, relying on subjective trust and relations among members of professional networks is helpful if professional colleagues know candidates best. However, these same networks, built upon the colleagueship and mutual loyalty noted, also potentially present barriers to getting to the truth about potential judges. In Committee Chair Grenkie’s experience, to overcome the barriers, an additional system of formal “interviews really helps, and really brings out the attributes of the candidates, such as awareness of social issues, and how they treat people”. 75 There is no necessary incompatibility between including subjective and objective elements in selections. However, whether such a hybrid will see the two elements complement or interfere with each other can be a complex question. The success of reforms often turns on the existing subjective background in a given jurisdiction. This background includes the array of informal norms already in place. For example, it includes the existing state of relations among selection participants—such as cooperation or antagonism among judges on a court, or between the executive and the judiciary. Reforms to politically sensitive bodies, then, can pose a chicken-and-egg problem: The success of changes intended to improve a decision-making culture—for example, to make appointments more impartial—can depend on aspects of the culture already in place at the outset of reforms. Begin with a cautionary case. In the 1970s, President Jimmy Carter tweaked the separation of powers in United States Court of Appeals appointments. 76 The separation had been premised on informal customs and 73
Grenkie, supra note 61; Oulton, supra note 45. The Committees help Ontario choose the judges it appoints. Courts of Justice Act, R.S.O. 1990, c. C-43. Some lower court appointments systems such as these resemble procedures sometimes seen at higher courts and can offer some guidance—even if I generally exclude these relatively low-level selections from the present article. Lower court appointments differ primarily because they pose a lower risk of political contention. The judges appointed seldom have the last word on broad directions of governmental policy, for example in constitutional cases: Fletcher, supra note 35. 75 Grenkie, supra note 61. 74
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Fletcher, supra note 35. Part of the reason for this was that the Democratic and Republican parties had reached a post-war accommodation: Democrats ran the South, and presidents were tolerant to the Jim Crow laws excluding blacks from many forms of social participation. And “outside the south, there was little to fight about”. Judge Fletcher asserts that this began to change with Brown v. Board of Education, 347 U.S. 483 (1954), 74 S. Ct. 686, 38 A.L.R.2d 1180.
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relations among Senators and the President. In remarks for this article, Justice William Fletcher of the Court of Appeals for the Ninth Circuit observes that a culture of “senatorial courtesy” and bipartisan harmony prevailed in the 1960s. 77 Appointments to the United States Court of Appeals were “dictated by senatorial politics”, with some involvement by, and deal-making with, the President. But some of the recent intensification of partisanship in selections appears to be an unintended consequence of Carter’s reforms. Carter “naively thought he could take politics out” of the process by assuming presidential control over nominations. 78 (Note that, in a formal aspect of the separation of powers dictated by the text of the Constitution, the Senate must still give its “Advice and Consent” to appointments and can reject a president’s nominees. 79 ) The change, however, only generated a more consistently ideological approach to appointments. 80 And intensified Senate opposition to nominations in recent years reflects, in Judge Fletcher’s view, an effort to reassert Senate control. 81 In the United States context, then, it may be that more robust involvement by Senators in the past was an effective separation of powers strategy. It had perhaps kept the appointments power from excessively concentrating in the hands of the president, and therefore from being overly influenced by political and ideological considerations. 82 Carter’s mistake may have been to discount the importance of—and to upend—a separation of powers embodied in the informal and subjective architecture of Senate practice. In contrast, Israel offers a relatively successful case of selection reforms drawing on an existing and salutary informal culture. Israeli judges now play an active decision-making role in appointments. The committee for Supreme Court appointments in Israel has seven members, a majority of whom are not otherwise in government. 83 The committee includes three justices of the Supreme Court. 84 Interviewed for this work, Professor Alon Harel of the 77
Fletcher, ibid. Ibid. 79 U.S. Const. art. II, § 2, cl. 2. 80 Fletcher, supra note 35. 81 Ibid. 82 Ibid. On the other hand, the United States presents a special case. Vigorous political battle has usually characterized American appointments since the advent of the Republic. Judge Fletcher notes that, shortly after independence, the main parties alternately created and repealed appellate courts to pursue their partisan interests. Note that the 1950s and 1960s saw a culture of apparently broad accord only in a relative sense; even in that era, partisanship in selections was more pronounced than, for example, in present-day New Zealand or Canada. Judicial selections based in the legislative houses of these latter countries might then play out very differently. 83 Interview of Professor Alon Harel, Hebrew University of Jerusalem (10 March 2007) communication on file with author. 84 Ibid. 78
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University of Tel Aviv describes as a “strong tradition” the committee’s practice of making no appointments against the will of its three judicial members. 85 This is a complex separation of powers model: It takes the judicial appointments power out of the hands of just one part of government, but places part of the power with members of the judiciary itself. The model presents some theoretical risk. Supreme Court justices, presumably uniquely aware of the personality dynamics and distributions of ideological predispositions on their own Court, can choose new justices who will serve as personal allies or tip the ideological scales in recurring controversies. Indeed, Israel has no shortage of subjects generating acute debate over law and policy in the public sphere, such as judicial oversight of the military and the place of religion in public life. 86 Nonetheless, by most accounts the Israeli judiciary, as in several common law countries, is the branch of government that is most respected nationally for fairness and impartiality. 87 The appointments process itself attracts few accusations of patronage or other impropriety. 88 In each of these two cases, at some point in time we see a successful and effective “objective” separation of powers: The appointments power is divided between parts of government—the Senate and the President, or the executive and the judiciary. On the other hand, “subjective” informal custom under girds the separation in each case. This is important if, as traditionalists assume, longstanding informal custom is generally more effective at commanding the respect and adherence of governments—more, especially, than formal rules constructed from whole cloth can. Thus subjective norms can help effect the distinctly objective end of keeping power out of too few hands in government. The problem with Carter’s reforms in the United States, then, was that they overlooked the careful subjective-objective balance of norms that maintained an effective separation of powers and a culture of relatively civil and principled discourse between the President and the Senate. On the other hand, in Israel, whether by luck or design, the reform established a balance of powers whereby judges now play a respected and apparently trustworthy role in their own selection process, despite potential risks. It is significant that change was modest—a limited addition of judges sitting as a minority on the selections body. But more importantly perhaps, the reform drew on judges themselves, in whom the Israeli culture already invested significant trust. 85
Ibid. Stephen J. Schulhofer, “Checks and Balances in Wartime: American, British and Israeli Experiences” (2004) 102 Mich. L. Rev. 1906 at 1919; Ran Hirschl, “Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales” (2004) 82 Tex. L. Rev. 1819 at 183637. 87 Ephraim Yuchtman-Ya’ar & Yochanan Peres, Between Consent and Dissent: Democracy and Peace in the Israeli Mind (Lanham, MD: Rowan & Littlefield Publishers Inc., 2000). 88 Harel, supra note 83. 86
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Returning to the case of reforms to appointments in the United Kingdom, the new selections approach is predominantly objective. Its Commissions feature the noted new appointment procedures accompanying the creation of the Supreme Court, and other dramatic changes to the judiciary. The changes are not modest and show minimal regard for cultures of trustworthiness already in place. Some evidence thus far suggests that this model, untempered by existing subjective custom, has descended quickly into “chaos” and inefficiency. 89 To be fair we should reserve judgment of the new Commission for several more years. However, in any event, whether or not the Commission finds its footing as an efficiently-run body, the more important issue may be that it still must work without relying on the noted predictive power of subjective networks of lawyers. 90 As one reform-minded commentator says of the reforms generally, analogizing them to changes at another old British institution: One might have thought that experience seeking to create a broadly acceptable hereditary free [House of Lords] would have demonstrated how easy it can be to destroy an ancient and in some respects outmoded institution, but how difficult it can be to produce an equally effective alternative. 91 B. ATTRACTING AND DETERRING CANDIDATES
PUBLIC HEARINGS, DEMOCRATIZATION, AND THE SELECTION OF COMPETENT CANDIDATES 1.
How do various innovations favouring more objective methods for installing judges impact upon the quality of judges? What are the effects of public hearings or of multiparty grilling, such as that endured by Rothstein J. in Canada? Do efforts to open up the process to public and political scrutiny, which put prospective judges under a bright public spotlight, deter qualified judges? One commentator who assumes that public hearings, in contrast, deter under-qualified candidates is Peter Russell, who writes that a
89
Forsyth, supra note 55. This is not, however, the only relevant element of subjective trustworthiness. It is relevant that the institutions of the United Kingdom, more than most, are steeped in tradition. (At least they appear to be: Features of the courts thought to be ancient or medieval are sometimes in truth only decades old). Legg, supra note 54. In Britain, more perhaps than would be likely in the United States or Australia, it may be that subjective institutional traditions of largely impartial selections will outlive their old origins and re-establish within the new Commission. In addition, note that some members of selections commissions across the United Kingdom are now judges, albeit in minority blocs—an innovation that I called subjective in the Israeli case. 91 Cretney, supra note 66. 90
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person who is so adverse to public scrutiny, no matter how well qualified he or she may be in a technical professional sense, is not qualified for service on the Supreme Court of Canada. Supreme Court justices, given the importance of their work and the interest the public takes in it, will be under constant public scrutiny. 92
However, a distinction should perhaps be drawn between public, livetelevised, hearings with representatives of political parties, and the lowergrade grilling by newspaper editorial that is more common after a justice begins work. Television news broadcasts do not rebroadcast highlights of Supreme Court sessions, as they did the recent ad hoc hearings in Canada or as they do confirmation hearings in the United States Senate. Justices of the Supreme Court of Canada have faced heated public reaction—for example, over rights to wear religious gear, 93 gay rights, 94 pornography involving minors, 95 and aboriginal rights. 96 But despite the public rancour these decisions have catalyzed, Supreme Court justices are seldom personally and publicly called on to account for their work on the Court. Public outcry, and infrequent replies by justices, 97 arguably do not stray far from the terms of legal debate with which jurists are familiar and comfortable. 98 Settling the issue of competence and deterrence, on the other hand, should rest on more than broad conjecture. More useful are the experiences of some of the observers closest to selections procedures. Do their recollections indicate deterrence of either qualified or unqualified candidates? Peter Hogg, who sheparded the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada in 2006 is one well-placed observer. 99 Interviewed for this article, Hogg noted that public hearings indeed “operate as a deterrent to the appointment of unqualified people”. 100 Hogg is presumably right to view public hearings as barriers to at least some significantly unqualified candidates. And other commentators, such as Jacob Ziegel, agree with him. 101 Indeed, some reports suggest that, in late 2005, advisors at the offices of the 92
Russell, supra note 32 at 14. Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, 264 D.L.R. (4th) 577. 94 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385. 95 R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, 194 D.L.R. (4th) 1. 96 Marshall v. Canada, [1999] 3 S.C.R. 456, 177 D.L.R. (4th) 513. 97 Marshall v. Canada, [1999] 3 S.C.R. 533, 179 D.L.R. (4th) 193. 98 Bona fide populist anti-court uprisings are rare and modest—the exceptions that prove the rule. Trust in Canada’s judiciary remains at 71%, according to recent polling: “Profession Barometer Report” Léger Marketing (9 March 2006), online: Léger Marketing at 4 99 Interview of Peter Hogg (20 March 2007) communication on file with author. 100 Ibid. 101 Ziegel, supra note 32 at 15. 93
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United States Attorney General became frustrated as they prepped the White House Counsel, Harriet Miers, for Senate hearings on her selection to the United States Supreme Court. 102 The advisors sensed an impending catastrophically poor performance and the hearings were cancelled—the nomination being withdrawn either by the candidate or the President. 103 Hogg’s view conflicts, however, with that of other interviewees for this work, including University of New Brunswick Law Dean Philip Bryden. Bryden’s connection to the Canadian judiciary stems in part from his many contributions to continuing education programs for judges. He observes that it is “fairly common knowledge that there are people who could have had a Supreme Court of Canada position but said no”. 104 Bryden believes that many factors deter qualified candidates. For example, potential Supreme Court Justices are often reluctant to accept the restrictions of the office—such as relocation to the capital. Qualified jurists such as Yves Fortier turned the office down, while others, such as Bertha Wilson were tempted to do so. 105 Judge Fletcher of the United States Court of Appeal provides some backing for Bryden’s view. Fletcher has observed much of his country’s long history with public hearings. He believes that some candidates are deterred not by the ordeal of the public hearing itself, but by the partisanship that surrounds the process and drags nominations out, sometimes over two years. Lawyers suffer the economic effects of an uncertain immediate future as their “client base dries up”. 106 Justice Sackville similarly declares that public hearings, in Australia at least, “[w]ill absolutely deter qualified candidates. As things stand now, many would say they don’t want to go through that.” 107 Like Bryden and Fletcher, Sackville cites the ordeal of the hearing and the drag on a lawyer’s practice. 108 Forsyth believes that other conditions also deter qualified candidates. He notes how the 2005 move toward objective, transparent, standardized procedures in England and Wales made lawyers less likely to take on the burdensome judicial role. 109 Even at the highest courts, judges enjoy incomes 102 Michael A. Fletcher & Charles Babington “Miers, Under Fire from Right, Withdrawn as Court Nominee: She Cites Senate Requests for White House Papers” The Washington Post (28 October 2005) A1. 103 Ibid. Miers also failed to gain strong backing by conservative Senators in the Republican Party concerned that her policy preferences might not suitably match their own. 104 Interview of Dean Philip Bryden (24 March 2007) communication on file with author. 105 Ibid. Bryden relates that Wilson indicated that she would have declined the appointment to the Supreme Court had it not been a historic first for a female jurist. 106 Fletcher, supra note 35. Fletcher notes that candidates who are academics or already judges are less vulnerable to this effect. 107 Sackville, “Interview”, supra note 58. 108 Ibid. 109 Forsyth, supra note 55. See also Sackville, “Judicial”, supra note 24 at 141 (calling such hearings demeaning to the office).
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substantially lower than their counterparts in London in private law practice, while potentially working harder. 110 But Forsyth asserts that qualified candidates in Britain have long been attracted to judicial office in part for the social status and public service aspects of the position. 111 Before the reforms, the Lord Chancellor called lawyers with distinguished careers to the Inns to deliver the message that it was “time to assume his or her public duty to go to the bench”. 112 The new formalized and objectified process, in Forsyth’s view, is less able to appeal to social standing and public-spirited duty. 113 The new system is more prosaic: It calls on “top-flight lawyers” to download computer applications and submit their own nominations for judicial office. 114 It is worth questioning, however, whether Forsyth’s observations assume notions of professional status and social class more pronounced in Britain than elsewhere in the common law world. 115 Sackville says of Australia, which recently instituted formal interviews for candidates, that he does not believe failing to appeal to judicial status is a problem “at least after a transitional period. … I don’t see anything demeaning about it at all. In Australia, people are getting used to it.” 116 Public hearings and other hurdles candidates must clear therefore generate the conflicting observations of Hogg, Russell, and Ziegel on one hand, and of Bryden, Fletcher, Sackville, and Forsyth on the other. The contradiction partly reflects the difficulty of gleaning information about why candidates rejected nominations, especially if their nominations were never made public. 117 Another fundamental source of confusion is perhaps the mixed picture of deterrence: Hearings may deter some good candidates and some bad. Many of the same hurdles face both qualified and unqualified candidates. Ironically, then, an appointments system with a strong culture of impartial nominations
110
Forsyth, ibid. Forsyth notes that annual salaries may be on the order of £150,000 for judges and £1,000,000 for similarly qualified lawyers. 111 Ibid. The high social standing of judges is sometimes described as unique to the common law world: Paul G. Mahoney, “The Common Law and Economic Growth: Hayek Might be Right” (2001) 30 J. Legal Stud. 503 at 507. 112 In Britain, the Inns of the Court, equivalent to Canada’s Law Societies, are Lincoln’s Inn, Gray’s Inn, Inner Temple, and Middle Temple. These old institutions are professional and social meeting places for barristers. Being a barrister itself carries exclusive cache in countries such as Britain and Australia. 113 Forsyth, supra note 55. 114 Ibid. 115 Ibid. Self-nomination is a feature, for example, of the apparently effective Canadian federal appointments process, albeit at the lower court level. 116 Sackville, “Interview”, supra note 58. 117 Bryden, supra note 104. (It is “hard to know how may people drop out of the race for a Supreme Court of Canada position, and why. We are very often dealing with second or third hand knowledge on this stuff”.)
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and well-qualified candidates might deter comparatively many competent candidates, even as a more politicized system deters more poor candidates. 118 Is there, however, a particular risk of deterring only the finest candidates? This risk looms largest given developments—most marked thus far in Canada and the United States—toward public hearings and democratization. 119 The set of desirable judicial values outlined at the outset of this part suggests that intellectual sensitivity and breadth of vision matter most for good judicial judgment—more than comfort before television cameras or a gift for public relations. In contrast to Russell, Sackville, for one, believes that public hearings call on judicial candidates to demonstrate characteristics at a public hearing that are irrelevant to the post they seek. 120 And many commentators see public hearings, and other moves toward democratization generally, producing politicized, polarized, and acutely combative selections procedures. 121 It is worth considering, then, how the tenor of appointments might change following open hearings and democratization. Will these forms of deliberation develop into something too simplistic, or too nasty, for the selection of distinguished judges? Hogg’s sanguine view on deterrence appears to stem from his optimism on the effects of public hearings. In his comments for this article, Hogg explains his view this way: Generally speaking … court decisions have not provoked partisan reactions in Canada, even on issues like extradition to capital punishment, extradition to torture, abortion, rights of accused persons, same-sex marriage, because the parties do not have policies on these issues—they accommodate a diversity of views. Of course, this could change, and human rights issues could become ‘wedge issues’, in which case that would probably start to emerge in the public interview process, despite my exhortations as to proper limits of questioning. 122
Hogg’s position that the political parties embrace a diversity of opinion rather than assuming a binary for-or-against alignment is not always clearly borne out. His point draws some support from the aftermath of the Supreme Court of 118
For example, no New Zealand or Canadian Prime Minister has recently elected so palpably under-qualified a nominee as Miers; because the American system, in Fletcher’s description, is already highly politicized, it nominates more under-qualified judges: Fletcher, supra note 35. 119 An open hearing, bringing the public inside the process as it were, in itself constitutes a form of democratization. Democratization can also include various forms of public submissions to or involvement in the appointments process. See e.g. Penner, supra note 32 (calling for limited popular elections of judges). 120 Sackville, “Interview”, supra note 58. 121 See supra note 23. 122 Hogg, supra note 99. Hogg is, however, wary of some current directions taken in appointments below the Supreme Court of Canada. He is “disappointed by the current federal government’s apparent attempts to exercise more control over the screening committees that review potential candidates for federal appointments beneath the SCC”. These attempts, he believes, were inspired by the government’s desire to appoint judges “tougher on crime”.
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Canada’s decision affirming same-sex marriages. 123 In their response to the decision, Conservative parliamentarians limited their objections to procedural or marginal questions, such as whether a legislative override under section 33 of the Charter was possible and whether civil servants can be compelled to officiate at same-sex marriages. 124 However, the decision certainly provoked some vocal public controversy. And despite the ostensible nuance presented in the Conservative reply, fine legal points raised may not have been as important as the public perceptions they generated about which parties were broadly “pro” or “anti” on the issue. Is there, then, a risk that public hearings will rely on similar binary political alignments and that parties will set conditions for appointments based on such “wedge” distinctions? Hogg believes that “there may be something in” these fears. 125 However, “[n]o politician in Canada has uttered the word abortion in the last decade, as far as I know. And even same-sex marriage, as radical as that seemed to lots of people, has almost ceased to be a public issue. The issue of penalties for criminals never goes away, of course, but no party has a monopoly on that worry”. 126 Controversies therefore fade away. But the key, and still open, question may be whether they do so in time—before a public hearing begins to appoint a justice who might be called on to decide the same contentious issue. Elsewhere in the common law world, judicial appointments procedures still resist open hearings, as well as democratization more generally. Sackville thinks that “public hearings in the Australian system will create a heavy politicization that is to be avoided if possible”. 127 And Palmer asserts categorically that in New Zealand the “idea of having [judicial] appointments subject to some parliamentary confirmation process will not happen. The Appointments Process in New Zealand … has stood the test of time for a long period now”. 128 Interestingly, the adoption of proportional representation voting in New Zealand “has changed the nature of our constitutional system”, Palmer says, but has “not impacted on these questions relating to the judiciary”. 129 This may provide some insight into differences between New Zealand and Canada. The readiness of Canadians to democratize their judicial appointments system perhaps reflects frustration at the pace of federal
123
Reference Re Same Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, 246 D.L.R. (4th) 193 (Hogg served in the case as counsel for the federal government). 124 See e.g. Rachel Giese “The Marital Divide” The Ottawa Sun (9 December 2006) at 15; “Editorial: Gay Wedding Furor Unwarranted” The Toronto Star (7 February 2005) at A17. 125 Hogg, supra note 99. 126 Ibid. 127 Sackville, “Interview”, supra note 58. 128 Palmer, supra note 1. 129 Ibid.
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electoral system change 130 —which the Constitution, and especially practical politics in a federation, make more difficult to amend than in New Zealand. Using its executive prerogatives, the party of the Government in Canada can, however, act relatively easily and unilaterally to widen democratic participation in judicial appointments. 131 2.
THE SCALE OF JUSTICE’: LARGE VS. SMALL LEGAL COMMUNITIES
If we assume Bryden’s perspective on deterrence is the more persuasive one, then many qualified potential candidates do not take judgeships because they are deterred by the various conditions of the job. But cultural consequences can be unpredictable, and the deterrence phenomenon—a barrier to a competent judiciary in one sense—might bring surprising benefits to smaller jurisdictions or to jurisdictions that impose a host of conditions on judicial office-seekers. By many accounts, as noted, the judiciaries of Canada and New Zealand are politically impartial, at least relative to those of other countries such as the United States. Bryden suggests that the Supreme Court of Canada has resisted politicization in part by having imposed numerous barriers to entry. In this way the Court has resisted Conservative or Liberal Prime Ministers installing like-minded ideological or political partisans. “The formal legal regime and other less formal conventions limit the candidate pool, which makes a big difference compared to the United States and United Kingdom”, Bryden argues. 132 To begin with, for the same number of Supreme Court positions, there are “ten to twenty times as many people to choose from”. 133 (The population ratio of Canada and the United States is close to 1:9; the ratio of lawyers is a more dramatic 1:15. 134 ) From this starting point in 130
For example, Canadian reformers perennially propose proportional representation and elections for the appointed Senate. Citizens’ Assembly on Electoral Reform (Ontario), “The Recommendation”, 2006/2007, online: Government of Ontario (recommending a “mixed member proportional system”); Citizens’ Assembly on Electoral Reform (B.C.), Making Every Vote Count: The Case for Electoral Reform in British Columbia (Final Report) (Vancouver, BC: Citizens’ Assembly on Electoral Reform, 2004); Guy Trembley, “La reforme des institutions democratiques au Quebec: commentaires en marge du rapport du Comite directeur” (2003) 44 C. de D. 207. 131 See e.g. Peter Oliver, “Canada, Quebec, and Constitutional Amendment” (1999) 49 U.T.L.J. 519 at 520 (“the Canadian [constitutional amending] formula is probably the most complex in the world”). Note also that Sackville distinguishes between Australia, on one hand, and Canada and the United States, on the other, noting that public hearings may be a necessary evil in the latter countries, which have constitutional bills of rights: Sackville, “Interview”, supra note 58. 132 Bryden, supra note 104. 133 Ibid. 134 For further country comparisons see the table below. The final column indicates the largest theoretically possible pool of lawyers that each position on the highest court can draw from.
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Canada, “the more conditions … the more constrained you are”. 135 Conditions for Supreme Court of Canada appointments are based especially on geographic/regional balance, and on bilingualism—though “serious bilingualism” is not typically required of justices from western Canada. 136 In countries such as Canada and New Zealand, both of which have female Chief Justices and significant numbers of female Supreme Court justices, approximate gender parity is now perhaps a conventional requirement. 137 Other courts and countries also have other requirements aimed at diversifying selections, including formal and informal quotas based on ethnic identity. 138 Country
Rounded Population (millions)
Lawyers
Lawyers as a Percentage of United States Lawyers (adjusted by pop.)
Number of Lawyers for every Justice of the Highest Court
United States 300 1,000,000 100% 111,000 United 60 151,000 76% 12,600 Kingdom Canada 33 67,000 61% 7,400 Australia 20 38,000 57% 5,400 Israel 6 31,000 155% 2,600 New Zealand 4 10,000 75% 2,000 Ireland 4 9,000 68% 1,100 U.S. State Department, Outline of the U.S. Legal System (2004), online: International Information Programs ; Central Intelligence Agency, The World Factbook (2007), online: Central Intelligence Agency: The World Factbook ; CanLaw, “Approximate Number of Lawyers by Region” (2005), online: Trust Canlaw ; Office for National Statistics, “Census: Snapshot of the UK’s Population” (2002), online: National Statistics ; Michal Tamir, A Guide to Legal Research in Israel (2006), online: Hauser Global Law Program ; Conseil des barreaux européen, “Number of Lawyers in CCBE Member Bars” (2006), online: Conseil des barreaux européen ; New Zealand Law Society, “About the New Zealand Law Society”, online: New Zealand Law Society ; Fabian B Dixon, RFD, “Law Council of Australia” (Address to Australian Legal Convention, October 1999), online: Law Council of Australia ; Kieron Wood, “Are Irish lawyers anti-competitive?” (2006), online: Kieron Wood’s Pages . (Note that appeal routes are complex in Scotland; the Supreme Court of the United Kingdom will take over many final appeals from the Law Lords in 2008.) 135 Bryden, supra note 104. 136 Ibid. 137 It should be noted that this may be a weaker constraint than, for example, bilingualism, because the numbers of female lawyers are relatively high. On the other hand Forsyth conjectures, in respect of the United Kingdom, that women are less willing to make the lifestyle sacrifices required to reach the bench: Forsyth, supra note 55. 138 Davis & Williams, supra note 14 at 845.
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Of the assorted requirements for the Supreme Court of Canada, Bryden believes that bilingualism poses the most significant constraint on the discretion to make political appointments: “If ideology starts to become an issue”—that is, if Prime Ministers demonstrate a new willingness to appoint ideologues or partisans—“then you get a smaller group” of candidates, and judicial ranks become difficult to fill with qualified individuals. 139 Ontario, Bryden suggests, is the exception, as its large population allows governments “to pick and choose … for particular ideological points of view” and “[y]ou get people who you know going in are more conservative or smallL liberal”. 140 Indeed Ontario has disproportionately many lawyers. 141 On the other hand, Grenkie insists that, since the introduction of the multiparty Committee system in 1989, the lower court provincial process in Ontario has become a useful check against the appointment of under-qualified political partisans. 142 Though initially somewhat fractious, the Committees now vote by consensus to label potential candidates as qualified or otherwise. “If you make the list, it’s fair game after that”—meaning that a government intending politics to guide judicial selections can only do so within the constraints of the Committee’s narrow list of qualified candidates. 143 Grenkie has seen “[a]ll three parties in power” in Ontario—Liberal, New Democratic, and Progressive Conservative—each of which nearly “always chose the top one or two” bestqualified candidates. 144 In Australia, informal political accommodations also ensure approximate balance among the states. For example, Queensland “is a sensitive state,” and for one current High Court vacancy, “the government may decide it is useful to have a Queenslander on the Court, [though] there may be much better candidates.” 145 In the United States, there is no rule of geographic representation for the Supreme Court. However, the situation at other appellate levels is somewhat more complex. The twelve regionally-based United States Court of Appeals circuits each serve populations approximately
139
Bryden, supra note 104. Ibid. 141 Ontario, with 43% of Canada’s lawyers, accounts for 38% of Canada’s population: CanLaw, supra note 133; Statistics Canada, “Population Counts, for Canada, Provinces and Territories, and Census Divisions by Urban and Rural, 2001 Census - 100% Data” (2001), online: Statistics Canada . 142 Grenkie, supra note 61. 143 Ibid. 144 Ibid. In rare departures, governments rejected candidate lists as comprising too many Crown lawyers or males. 145 Sackville, “Interview”, supra note 58. 140
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equivalent to Canada’s. 146 There is no rule of regional representation inside each court, though there is some Senate custom providing for loose regional parity. For example, a Democratic Senator from California, Barbara Boxer, recently opposed the President’s appointment of a justice from Idaho—a state that shares the Federal Ninth Circuit with California. 147 Boxer believed it was California’s turn to provide a candidate and her claim seemed to call on a principle of fairness intelligible in the American appointments system. There is therefore some scope for Bryden and Grenkie’s phenomenon to act at the United States federal circuits, if much less at the Supreme Court. Whether such conditions constrain political choices, however, apparently rests on elements of existing political culture. In the American case, party politics itself is the source of one of the country’s primary social divisions and provides some of the most formidable barriers to judicial appointment. Indeed, in the view of Judge Fletcher, the political polarization of appointments to the highest courts of the United States has meant that judicial ideology now often weighs more heavily than judicial quality. 148 The characteristic of a United States Supreme Court justice on which commentators probably remark most often is her location in a liberal-conservative spectrum. The justices hold to surprisingly consistent positions. 149 While the linguistic and geographic conditions Bryden describes for the Supreme Court of Canada constrain political considerations, then, the most prominent conditions for entry to the United States Supreme Court and other appellate courts are political conditions themselves. Other conditions do not appreciably constrain politically-motivated judicial appointments—as, for example, the recent decline in the number of female United States Supreme Court justices, from two to one, stimulated limited public and academic commentary. 150 The question of deterrence as a consequence of reform is perhaps best answered, then, like the chicken-and-egg problems of the previous section—that is, in part by reference to elements of the culture of appointments already prevalent in the jurisdiction.
146 This is an average figure from which there are significant outliers; for example, the “Ninth Circuit has a population of 58 million. One-fifth of the nation’s population lives within the Ninth Circuit”: Hon. John M. Roll, “Split the Ninth Circuit: It’s Time” (2005) 42 Arizona Lawyer 34 at 34. Note, however, that the Ninth Circuit has 28 justices. 147 “Senators Spar Over Appeals Court Seat” The Idaho Statesman (2 March 2006) at A2. 148 Fletcher, supra note 35. 149 Fletcher, ibid. In Canada, the most prominent differences of identity probably centre around language, gender, aboriginal peoples, and the many relatively new immigrant cultures. American political energy, in contrast, frequently focuses on the distinctive black and Latino cultures, on gender, and—significantly—upon the Democratic-Republican rivalry, which also stands in for prominent debates over such issues as morality, security policy, and economics. 150 The literature includes no sustained examinations of this point.
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IV. CONCLUSION In this article, I have examined just two of the many selections innovations that have, in recent decades, demonstrated a strong faith in objectifying reform models. Objectifying proposals include Christie’s suggestion for wider public involvement in judicial selections and the administration of justice. 151 But his concrete prescriptions, like many others’, are in the main insensitive to the roles of informal custom in judicial appointments systems. Indeed, many of the most important determinants of institutional effectiveness—including norms of trustworthiness, impartiality, and respect for the rule of law—are subjective, intangible, and ultimately rather obscure. Not surprisingly, we frequently overlook them as we undertake new institutional changes. This is one reason why comparative studies should develop a picture of the cultural consequences of reforms—both intended and unintended. The selected subjective recollections of participants and close observers of judicial appointments in this article helped sketch an outline. A fuller picture can ultimately provide a measure of practical guidance as judicial selection reforms continue across the jurisdictions of the common law world.
151
Christie, supra note 2. These reforms, he believes, will produce specific improvements such as reduced barriers to access to justice. One of the conundrums Christie’s perspective raises is why, assuming that we already know what changes need to be made, we must go the roundabout way of democratizing justice to make the changes. Christie seems to make the practical point that nothing really gets done without the public’s efforts lobbying in their favour: Christie, supra note 2 (citing 19th century reform efforts that succeeded only after public mobilization). But the idea of institutionalizing a role for the public might have some particular unintended consequences. Many people in a democracy presumably disagree that litigation should become more prevalent (as it is in the United States, where “personal injury lawyer” can be an offensive epithet); that poorer members of a society should be better able to press their constitutional or other rights; or that more public funds should go toward legal counsel for the poor.
