Dialogue: Judge selection criteria too narrow

If the public is to have confidence in the Judiciary, the recruitment of High Court and Court of Appeal judges should be made from a much wider field, writes STEPHEN HUNTER*.

During the brouhaha over judges' internet use, the Prime Minister and the Attorney-General repeatedly stated that their concern was public confidence in the accountability of the Judiciary.

It is regrettable this concern has not led the Government to address the far more pressing issue of the manner in which our judges are appointed.

The public has a right to a Judiciary that is fairly drawn from the wide pool of legal talent and to a selection process that takes account of a wide range of views. Neither right is guaranteed by the system.

Appointments to the High Court and the Court of Appeal are made by the Governor-General on the recommendation of the Attorney-General. The only formal requirement is that an appointee must have held a lawyer's practising certificate for at least seven years.

In practice, the Attorney-General consults informally on appointments with the Solicitor-General, the president of the Law Society and the Chief Justice, but not with any other elected officials such as cabinet colleagues or MPs.

Sir Geoffrey Palmer wrote in 1995 that he had never known, in six years as cabinet minister and five as the Attorney-General, any discussion of judicial appointments in the cabinet. There is scope for a select committee of Parliament to assess candidates, but this does not happen.

This system has led to a Judiciary that is strikingly homogeneous and unreflective of the broader legal profession, let alone society as a whole.

The 39 High Court and Court of Appeal Judges include only four women, including the Chief Justice, and one Maori. Most astonishingly, no woman or member of a minority racial group has ever sat as a permanent member of the Court of Appeal (the Chief Justice is based in the High Court).

The imbalances are not, of course, attributable to conscious prejudice. After all the Attorney-General (who selects appointees), the Governor-General (who confirms them), and the Chief Justice (who is invariably consulted) are all women, as is the president of the Law Society.

Rather, the composition of the Judiciary is reflective of a narrow conception of what qualities are required of a judge. This conception is itself linked to the absence of democratic controls, and the focus on a limited notion of professional achievement in the appointments process.

As a result, appointments from outside the litigation career mould are relatively rare. It is assumed that only men, and the occasional woman, who have followed a specific career path - one that often draws people of a similar social background - are suitable for the judicial role.

Lawyers who have devoted their careers to teaching, to Government service or to other alternatives are ignored. There are exceptions, but they illustrate the general rule.

A number of arguments are commonly made in favour of the system. First, it is argued that merit, and not a candidate's politics, must be the only criteria. Agreed, but politics - the politics of career choices, of networks, of having particular characteristics and background, of how we define merit - inevitably plays a role.

If anyone doubts how narrowly the net is cast, consider comments reported in the Herald in late 2000 by the head of the Higher Salaries Commission that judicial salaries were being raised because of a concern for recruitment.

A High Court judge's salary of well over $200,000 a year creates a recruitment issue only because the focus of that recruitment is on a few senior barristers and partners in major firms. Most lawyers, particularly those in the public sector and in law schools, do not earn anywhere near that much.

Diversifying the Judiciary does not require that we select token and unqualified candidates. Rather, by broadening our conception of what it takes to be a judge, we should have no difficulty in identifying a range of suitable lawyers from government, academia, diverse areas of private practice (as indeed has been the case with a few recent appointments), as well as barristers.

Secondly, it is argued that a more overt involvement of politics would lead to the spectacle of the American appointments system, in which the President appoints a favoured candidate who is then raked over the coals by the President's political opponents in the Senate, who must confirm each nominee to the federal bench.

But many American commentators i regard a strong Senate role as being crucial to the quality of appointments and to public confidence in the Judiciary.

The third and worst argument for retention of today's system is that the results it produces will gradually change. It is often said that as the numbers of women and minorities in the legal profession increase, so will their representation on the bench. Recent history - only one of the past 12 High Court appointees, Justice Susan Glazebrook, is a woman - shows this to be untrue.



A more inclusive and comprehensive selection process might involve either a parliamentary select committee or a judicial commission composed of people chosen by Parliament. This would provide a visible body to solicit nominations and receive public opinions on candidates.

Its goal would be to reach consensus on the desired qualities of a judge and then to look widely for suitable persons. A change of approach is unlikely to remove merit as the overriding consideration. The question is one of how merit is perceived.

There is no question of decreasing the status and role of the Judiciary as an independent branch of government. The issue is how to select the exceptional individuals who are, as a group, representative of the community they serve and who will fill this independent role.

* Stephen Hunter is a New Zealand lawyer completing a masters degree at Harvard Law School.