Time for us to come to know our judges

How refreshing it is to see the process of judicial appointments come under the public spotlight. Andrew Bolt has certainly caused a bit of a storm in the Victorian legal community by questioning the appropriateness of Marcia Neave’s appointment to the Court of Appeal in Victoria in his recent columns in the Herald Sun.

Bolt’s barrage was so hot for the legal community that another judge came out in defence of Neave’s appointment. The telling thing about this is that it is the first time a judge has had something to say on any issue recently the in opinion pages of that newspaper. Matters such as the new counter terrorism laws and the proposed Bill of Rights for Victoria obviously weren’t important enough to encourage members of the judiciary to sharpen their pencils and provide the community with some intellectual and moral guidance.

It is no answer that judges shouldn’t make public comment on social issues which have a legal dimension. Australia’s leading jurist, Justice Michael Kirby (the “people’s judge”) of the High Court, has been doing a powerhouse job over the past few decades in enlightening the community on a range of defining social issues. In doing so, he has modernised the court and enhanced community understanding of the judicial role.

While the debate about judicial appointments is the topic of much gossip in the relatively small and tight-knit Victorian legal community, it is important that the issue is aired more widely in the community at large.

The role of judges is central to our system of democracy and an enormous amount turns on exactly which person gets the nod as a judge. This is because many of the rules in our legal system are very vague, leaving considerable scope for the subjective preferences and hunches of judges to make a significant impact on our lives.

If you’re unfortunate enough to land up in court, the judge you get can make the difference between jail or a small fine for some criminal matters, and in civil matters between no payout at all or thousands of dollars in damages.

There used to be a theory that when judges decide cases, they remove their subjective preferences and prejudices. That’s nonsense. Like all people, judges come to their task with their personal beliefs and value systems, which are impossible to block out when they decide cases.

That’s why the science of “jurimetrics” allows lawyers to predict with a high degree of accuracy how any particular judge will decide a case. As was noted earlier this year by Professor Alan Dershowitz of Harvard Law School: “Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality. … On many occasions, the impact of [a judge’s] biography is overt and conscious. Other times it is subtle and unconscious. But it is always there”.

Given that judges are so important, it is crucial that governments appoint the right people to these esteemed positions. If you’re still reeling from your last job interview, you’ll be shocked to know that this is something that judges never have to go through - at least not in a formal sense. They don’t even need to fill in the blanks in the position description - there is no such thing.

Judges are simply given the nod by the attorney-general and the appointment is then rubber stamped by the government. This process is shrouded in secrecy and does nothing to rebut unhelpful speculation in some circles that one of the most important credentials for a judicial position is to be a mate of someone in government. Cynicism that judicial positions are often rewards for mateship is fuelled by the fact that it is the perfect job to dish out to your mates.

You see, it’s almost impossible to sack judges and there are no publicly available performance indicators of how they are measuring up in their $200,000 plus annual gig. That’s why no one in the community knows the difference between a good and bad judge.

It’s time for a shake up on this front. As with all job placements, the key to injecting community confidence is to introduce a bit of transparency and accountability.

We need to follow the US model of confirmation hearings for our senior judges. During this process judicial aspirants are asked a range of probing questions about their approach to legal reasoning and moral outlook. If they survive this, they get appointed, otherwise the hunt for a competent applicant continues.

These hearings are highly publicised and normally very controversial. No wood ducks need apply - it is a very rigorous process. The real splendour of the hearings is that the community gets to assess the make up and calibre of their judges. We should know the views that our judges have on issues such as minority rights, euthanasia, law and order and civil liberties. This will inform us of the way that they are likely to make decisions on important matters that centrally affect our lives.

This process would encourage us to assume a degree of ownership in the courts and enhance the level of respect that is accorded to the judicial task.

This is lacking in Australia. Rightly in Australia we respect people, not positions.

The courts are one of three pillars of power in our system of government. We have too much stake in this institution for our confidence in the courts to be dampened by the black box decision-making process through which judges are appointed.

We also have no reason to trust the unchecked judgment of the government in hand selecting candidates to our benches - the decision is too important.