Merit and the judiciary

Chief Justice Warren of the Victorian Supreme Court has called for appointments to the Supreme Court to be made on the basis of merit first, and said that the government must not put a desire for diversity above a desire for a capable, functioning judiciary.

In her inaugural address for Law Week this week, she said,

However, if diversity rather than experience and immediate capability become the dominant fact in appointment considerations, extra judges would be required to maintain the existing work capacity of the courts.

I think this is clearly correct. I am not a big fan of “tokenism”, particularly if a “token appointee” is unable to perform the job to the standard required. Negative stereotypes are reinforced rather than rebutted. No one wins – not the minority group of which the judge is a member, not the judge himself/herself, not the public, not the lawyers.

If I were appointed to a position of power, I would hate to be appointed merely because I was a woman or I belonged to a minority group. I would want to be appointed because I was very good at my job, and others thought that I merited the promotion. Yes, it is important to have diversity, but it is more important to ensure that you have a person who is qualified for the job.

Sometimes I think judges get a rough trot. They get criticised as “rarefied” and as lacking diversity, but those with whom I have come into contact have been humane, intelligent people who do a great job. It’s easy to criticise judgments and findings when you don’t have to hear the evidence and make the decision yourself. It’s an incredibly difficult and stressful job to make a decision which will affect people for the rest of their lives. All judges whom I have met are aware of this, and take their duties very seriously.



Filed under courts, judges, law

20 responses to “Merit and the judiciary

  1. Certainly you are correct, LE. Women should be appointed on merit. But there are a few problems with the system as it has existed, which is why “affirmative action”-style programs have been needed. The core problem being that merit has not in fact been the primary criterion of appointment.

    The first problem is the problem of networks and connections. In the law, this has meant that men who have risen to positions of power – either in politics or in law – have then appointed their close friends and associates. Older (and therefore more powerful) men tend to exist in more exclusively gendered groups professionally, because they come from generations where women gave up their careers upon marriage or family. Many of them went to single-sex schools (I remember well the exchange in Parliament between Kennett and Brumby about Scotch vs Melbourne Grammar). And the culture of the bar is still very sexist: I still hear from friends of mine who are shocked after attending drinks with barristers and solicitors where dreadful generalisations are made about women at the bar (from sluts to raving lesbians to heartless career women). These are not the men who will become judges, but rather is a display of the extremes of the problem.

    This brings me to my second point: that preconceptions from men in power mean that women still have trouble establishing themselves as worthy professionals.

    Third, judges are chosen largely from the bar rather than from the ranks of solicitors. Women often find the barriers to entry to the bar very difficult. Often the time when it is most opportune to go to the bar is the time when women are most distracted by family needs, expectations and commitments. So we have a lot of very talented women lawyers in academia or in legal practices, but not many at the bar.

    Finally, there is the well-known phenomenon that people tend to employ or appoint those with similarities to themselves. This has a flow-on effect in terms of gender.

    So while I agree that merit is important, I believe that merit is simply not being adequately exercised as a criterion for selection.

    A further point to add is: what is merit? It might have been seen 200 years ago that adherence to strict legal positivism was meritorious. The federal government might consider that “merit” is to be found in conservatism. If this kind of “merit” is to be the norm, then many excellent judges would never have been appointed – their excellence being partly attributable to their legal adventurousness and creative minds. Certainly the beloved Lord Denning would never have found his way to the House of Lords! And we would never have had such decisions as Mabo or Wik, or Dietrich, or a number of the Chapter III cases, or many more… (LE I’m sure there’s some equity or restitution cases you could add here!)

    I know this comment is longer than the post itself, but I felt it needed a thorough response – sometimes the anti-affirmative action stance can, although logical at face value, be too simplistic in all the circumstances.

  2. You are right, Cherryripe, that women find it difficult to build up “seniority” at the Bar if they choose to have children and actually want to play a part in their child’s upbringing. That’s something that has put me off the Bar for the moment, although it’s still an option in the distant future. Already I’d be at a disadvantage in the seniority stakes if I wanted to be a top barrister… šŸ˜‰

    You are also right that there is a very scary “old boy’s” network in the legal community. I didn’t realise the extent of it until I went into practice. But fortunately, not everyone who is appointed to the bench is an “old boy”.

    The thing that concerns me with this whole push towards diversity is the implicit suggestion that a judge from a white male Anglo-Saxon background is somehow a bad judge. He may be very talented and open-minded, and he shouldn’t be written off if he is a good lawyer and likely to make a good judge.

    My idea of merit does not mean that people have to view the law in a certain way (eg, positivism, activist, non-activist, whatever). I hate the way the political parties often appoint judges whom they think will support their aims. Of course law is always political, but surely you can recognise merit in someone even if they have a different political approach to you? Maybe I’m just crazily open-minded…

    To me, “merit” includes taking account of different professional backgrounds. So I support broadening the pool from which the judiciary can be chosen to academics (eg, Finn J of the Federal Court, Neave JA of the Court of Appeal) and solicitors (eg, Teague J of the Supreme Court). We don’t need to have such a narrow view of the professional qualifications of those who might be good at the job. It is good to consider other types of lawyers, and this may lead in turn to a natural diversification of the bench (as opposed to a forced diversification).

    Nevertheless, we should be mindful of the fact that judges are generally expected to “hit the ground running”, and that might be very difficult if, for example, you are a solicitor from a “front end” practice (ie, drafting up contracts, deals and the like), or an academic who has never seen a court room before. My own experience of working in the court was that it takes a while to get the hang of it all, and it would be extremely difficult to be a judge straight away if you didn’t have some sort of litigation background or experience in some way or another.

  3. marcellous

    Why should judges have to “hit the ground running?” I don’t see that this is any essential element in the separation of powers or in judicial independence (whereas the system of giving people a trial run, as in the England is done with Recorders, is a little more problematic). I think it would be possible to provide mentoring from other judges which did not compromise new judges’ independence, provide them with a certain amount of observation time before they have to take on the full role, and give them a reduced case-load for the first few months. In any case, we are only talking about appointing people who are very capable, or so one would hope.

    If there are people who, apart from specific court-room experience, otherwise have the necessary legal skills, I think it should be possible to find ways of easing them into the job and giving them a bit of time to get up to speed. It will cost a bit more (they will need to have the full judicial establishment) but that would just be a price to be paid. Otherwise, it is just like the pathetic approach that Australian employers take in other areas – as in the ads for sandwich hands or other relatively readily trained jobs, which always want “experience” because nobody wants to do any training. I have always thought this was very short-sighted, because in many situations having the right person in the long run would be worth more than the person who can start on the first day.

    It is true that there will be a risk that people without specifically litigious experience may struggle with the job, but in fact that is already the case with the transition to the bench: barristers or solicitors who know the ropes from one side of the bar table do not always make the transition to the other side as successfully as one would wish, and that’s a risk that has to be run.

  4. OTT

    Well, Cherryripe took the wind out of my comment.

    I have not read Justice Warren’s speech, and I’m sure she will be more thorough than I can give credit for in my comment, but I don’t think “affirmative action” suggests that a person is appointed because of their minority status, rather that, if there are two or more people of equal merit, than diversity issues can assist to decide which person gets appointed.

    I’m not sure you have not taken that into account, but I do think it’s worth pointing out šŸ™‚

  5. fairlane

    OTT, you are correct and actually you stole my point, therefore I have no other choice but to sue you for “infringement” of something or other.

    But to expand on your point, here in the US that part of Affirmative Action is often left out. People are led to assume that the “minority” is some marginal student who barely meets the criteria, if at all, and the person who lost out was “top of the class” etc etc.

    In the US, this is rarely the case when it comes to positions worth a damn. They take the cream of the crop, and I think much of “outrage” is exaggeration or propaganda.

    Maybe Australia is different. Well, I know it’s different we don’t have Funnel Web spiders for example.

  6. Aimee

    Marcellous may have a point that judges shouldn’t have to “hit the ground running” and should be trained up appropriately. However it is not only the choice of judge that is a political issue, largely in the hands of politicians – the level of pressure that the judge is under when they start can also be determined by the decisions (or lack of decisions) made by politicians. My practical experience in the local (Victorian) jurisdiction has been that by the time a new judge is appointed the Supreme Court has been short a judge for a long time and work has built up to intolerable levels. Hence the running. This has been a problem in Victoria for a number of years now. Of particular note was the delay in appointing the Chief Justice, but also the extremely long period when the Supreme Court was short about 3 Masters and the existing Masters were working incredibly long days trying to keep the system going. Judges and Masters don’t retire suddenly – they give lots of notice. If the Attorney-General is not in a position to appoint a replacement when they have retired it is not because they have not had sufficient notice … I can only assume it is because he is not interested.

  7. A U.S. president (I think) once said something along the lines of “you can’t remove a slave’s leg irons and them expect him to compete in a 100 yard sprint.”

    To me that gets to the core of this – you cannot simply declare that everyone is ‘equal’ and then take no further action to ensure that it is so. It’s like playing a game with bent rules for 3/4 of the game, then correcting the rules but not redistributing the chips (if that makes sense) and saying that everyone has the same chance of winning.

    So to me, the question is really this: does the benefit of more gender or racial balance in a given discipline outweigh the cost (if any) of potentially less experienced or (establishment) qualified candidates?

    In any event I think it is something of a myth to suggest that, in effect, there are only one or two people qualified to be a judge (or whatever role we happen to be talking about), and that by selecting a woman or a person from a racial minority we are likely to get a poor candidate. There must be dozens of lawyers – current judges, QCs, academics, and so on – who are good enough to become members of the land’s superior courts.

  8. Anthony_

    So to me, the question is really this: does the benefit of more gender or racial balance in a given discipline outweigh the cost (if any) of potentially less experienced or (establishment) qualified candidates?

    I guess it depends on what situation is. For example I don’t agree with the changes to the fitness tests to cater for more females in the Victorian Police force.

  9. I think there’s two different strands of comment here. I dashed off this post very quickly last night, and I don’t think I thought it all through enough. Thank you for all your comments, which have helped me think more deeply about the issue.

    1. Diversity and affirmative action

    Of course, if there were two candidates of exactly the same ability, but one happens to be of a minority background, that can be relevant to the selection process. A court will work better if people believe it is truly representative. So where candidates are roughly equal, it is fine to take diversity into account. I take Paul’s point that there are not just two or three candidates in a State who would be suitable.

    I have worked out that what I hate is not tokenism so much as “political appointments” (which may involve either the old boys network or tokenism). I’m thinking of an situation where:
    (a) someone has clearly been promoted above their ability; or
    (b) someone is clearly not temperamentally suited towards judicial office;
    but these things are overlooked in a desire to get a politically acceptable candidate on the bench.

    The second one is the more common problem. Most senior barristers and lawyers will be intelligent enough to do the job. However, the thing that worries me about political appointees (whether they are of the “old boys network” kind or the “token minority” kind) is that such a person might not be suited towards the job, but in the desire to make an appointment which suits their particular politics, the government overlooks this. I am thinking, for example, of the furore surrounding NSW magistrate and indigenous woman Pat O’Shane. She is obviously intelligent, but questions have been raised about her suitability on a personal level to be a magistrate. She has a perceived bias against police, and has made a number of very controversial decisions which have been criticised heavily, including by the NSW Court of Appeal. Should this be ignored simply in the interest of promoting diversity on the bench? In the event, complaints about her behaviour were referred to the NSW Judiciary Commission last year. I do not think they have been resolved yet.

    If someone is a political appointee, it does a disservice to litigants, lawyers, and the bench generally. I know from practice that the reputation of a particular judge gets around very quickly, and lawyers try to avoid getting that judge if he or she is perceived to be biased in a particular direction or “not up to it”.

    2. Hitting the ground running

    As Aimee says, the courts are massively understaffed and underfunded. Existing judges are having enough trouble keeping up with their workloads. I believe that there is a “mentoring” system in place now, but there just isn’t the time to babysit and train new judges. If Hulls wants to appoint people from different backgrounds, including non-litigious backgrounds, he should (a) appoint a new judge as soon as he knows an old judge is going to retire and (b) provide more funding so that the Court is not so stretched and judges might have enough time to be able to help new appointments. Perhaps there should also be some kind of “Judge School” where new judges can go to get experience?

    I am afraid that I get VERY mad about the lack of government funding for the courts. When I worked there we got these stupid questionnaires asking us how our “Business Unit” was functioning. That’s the whole bl**dy problem – A COURT IS NOT A BUSINESS UNIT – it does not generate business or a profit. It is a dispenser of justice to the community, and as such deserves to be well funded. Grah!

  10. Not much of a legal background to draw on for a comment here but my brother, a long-serving clerk of court would often comment about judges being in touch with the law but out of touch with the mainstream. I do think Paul has explained the Affirmative Action conundrum very well. Off-topic, I also recall the many issues surrounding juries from Fifth Form Legal Studies classes at Flemington High in the good ol’ 70s and Richard Ackland has written a succinct piece about them today in the SMH at The issues haven’t changed much at all!

  11. I didn’t realise how good the Qld system (at least in the Supreme and District Courts) is then – based on these comments. It works efficiently and with few delays. There’s been the odd stink-up about judges from minority/non-litigation backgrounds, but I don’t see how that can be changed when the whole system of judicial appointments is not exposed to outside scrutiny. Much of this quibbling could be resolved if the appointment process were made more transparent.

    FWIW, I don’t approve of affirmative action. It produces considerable bitterness among disadvantaged members of majority groups (I grew up in Logan City, and the ‘poor whites’ there were every bit as badly off as recent immigrants or Aborigines). Things like affirmative action encouraged large numbers of them to vote for Pauline Hanson. I also think (wearing my law and economics hat) that it’s too easy to game, and encourages rent seeking (much like government interventions in the arts, or local councils). Tim Harford’s excellent ‘green belts’ study in The Undercover Economist is a great place to start on this point.

    Over time, minority participation (although I baulk at calling women a minority, because we’re not) will approach white male levels, but it won’t happen immediately. It may even take a couple of generations. It may also never draw exactly equal, although I suspect that may be to do with divisions of labour that are economically efficient (the reason people choose them) and is quite possibly informed by biological factors.

  12. fairlane

    I definitely think “cronyism” is the biggest problem and threat to the integrity of not only the Judicial System, but to all Systems.

    I know you’re in Australia, but look at the Bush Administration. Cronyism is pervasive from top to bottom.

    Appointees with “Law Degrees” from Liberty University which is, to put it lightly, considered a dubious institution that is under the auspices of none other than Pat Robertson. The same man who claimed “God” told him Bush would be elected President.

    We also see it with Paul Wolfowitz at the World Bank, Gonzales at the Justice Department, Elaine Chao at the Department of Labor etc etc.

    People who are either overtly hostile and partisan or who are completely unqualified.

    He even tried to appoint Harriet Myers, a life long Bush toady, to the Supreme Court. Myers said of Bush, “He’s the most brilliant man I’ve ever met.” That should tell you enough about her qualifications and psychological make-up right there.

    I don’t know much about Australia, I’m trying to learn, but it sounds like you have some of the same kinds of problems we face.

    The very Foundation of our System is under assault here.

  13. Ahhh yes, Liberty University. Had a look at their website after Jerry Falwell shuffled off this mortal coil. Not exactly great shakes in the academic stakes – the thought of its graduates with significant input into public policy is rather scary.

  14. Fairlane,

    I don’t think we’ve got the cronyism disease quite as badly here, but yes, we have similar problems.

    I can’t get over Harriet Myers thinking Bush is the most brilliant man she has ever met. She obviously doesn’t meet many people.


  15. marcellous

    I don’t think you should take the Murdoch press at face value on the question of Pat O’Shane.

    I have seen O’Shane in action. She is very short-tempered, but I wouldn’t say that she has any particular bias against the police. She treats their evidence critically (unlike many magistrates) and this has backfired in some very notorious cases, but has also led to justice being done in others.

    The Court of Appeal threw the book at her in the Makucha case (see ) but they were working on a transcript which did not include Mr Makucha’s most outrageous behaviour because it was so outrageous it did not get transcribed. I expect that they were responding to Ms O’Shane’s reputation as much as to the facts of the matter. Ms O’Shane was not, of course, a party to these proceedings. When the same matter went to the Judicial Commission, the commission (made up of three judges) listened to the tapes and came to a quite different conclusion. In passing, I should mention that on all accounts Makucha is a wealthy serial litigant, and he was not, as the Court of Appeal seems to have assumed, some poor put-upon litigant in person suffering under some sort of linguistic difficulty in English.

    I would say that Ms O’Shane does have a short fuse, and this can lead to some fairly bullying behaviour in court. However, as you would surely well be aware, there are other judicial bullies on the bench, and this is by no means confined to judges who have been selected on “affirmative action” grounds. I myself have witnessed an very well-known NSW Supreme Court judge (whose appointment could on no grounds have been on any PC basis) bellowing at a female barrister who didn’t catch his muttered remarks and who, quite obviously, was a little deaf. I feel ashamed not to have complained about this, but then, as I was on the other side in this exchange, it was hardly up to me to put ordinary sentiments of decency ahead of my client’s interests, and, of course, I may well have to appear before him again on some future occasion.

  16. Horatio

    The system of appointments is an absolute joke. Whatever ‘gender bias’ people think there is (and there’s been a record number of women appointed to the bench anyway) it is totally dominated by the ‘elitist bias’.

    Its always the well connected lawyers, and notably those connected to the big six law firms, or those who’ve ‘networked’ in labor circles who get the plum appointments.

    The same goes for all the appointments to the public sector legal bodies that oversee lawyers, and the other regulators.

    Because this is real bias, we dont discuss it, but endlessly discuss a mythical ‘gender bias’ instead.

  17. Horatio

    Cronyism is absolutely rife in Australia, and getting worse. You’ve basically got to be a ‘mate’ of someone to be appointed to the bench or to a public sector job. Labor is just as bad as Liberal. Females are as bad as males, but the ambitious females have another convenient condition – their gender- to exploit to further their careers.

    Our legal system is slow inefficient and useless, and dominated by smug, self satisfied elites.

  18. Marcellous,

    Thank you for that further information about Pat O’Shane. I had skim-read the NSWCA judgment, but I was not aware that they did not have a full transcript of Mr Makucha’s arguments. Nor did I know that he was a serial litigant. I got the impression that he was a poor man who did not speak English well. Finally, I did not know the Judicial Commission had handed down a determination in Ms O’Shane’s favour.

    It just shows: you never know the full side of the story from the press. I should have known that already from bitter experience, having seen matters I was involved in totally misreported on occasion!

    In Ms O’Shane’s defence, I am aware that self-represented litigants can be very frustrating to deal with for judges and magistrates (see previous posts here and here on the topic).

    Nor did I mean to suggest that bullying behaviour is confined to those who are perceived to have been appointed on an “affirmative action” basis. Certainly not! I, too, have seen bullying behaviour by judges who are the very antithesis of a “politically correct” appointment – Old Boys to the core.

    I just wish that more thought be put into picking the right person for judicial office, rather than politics. I don’t care whether the politics in question is left or right. The really important question is: Will this person make a good and fair judge? Not: Did he go to the right school? or Is she a mate of mine? or Will he make decisions that I like? or Will this appointment make courts look more “diverse”?

    Perhaps my wish that politics not be a fundamental concern in selection is a vain hope.

    Also you never know how someone will go in judicial office until you try them. I remember the Rumpole books, where Rumpole’s ineffectual barrister friend is appointed to the bench and suddenly comes into his own as a superb and competent judge.

    I once heard that Windeyer J was always a little overawed by Barwick CJ when they were on the High Court together, as Barwick CJ had been one of the best advocates ever. But I think Windeyer J wrote better judgments in the end, and was the better High Court Judge.

  19. Horatio,

    You are right – it is very important who you know. The better connected a person is, the more likely they are to get appointed to a high office. There are a few exceptions to that rule (I know of some Judges, for example, who are not schmoozers in the least, and they are very good Judges to boot). But it does seem to be remarkably important.

    I also think that Labor is as bad as the Liberals in this regard. “Jobs for the Boys/Girls” really gives me the irrits. Surely it should be someone who is competent, not someone who is a mate?

  20. Cherry Ripe

    I’d like to see Marilyn Warren do a speech on the problem of cronyism and elitism in the appointment of judges in Victoria – she’d be out on her ear in no time, roundly dismissed and rejected. She would lose all authority, from both political and legal communities.

    So instead she chose a safer target – those who are under-represented and perhaps equally lacking in merit (though leaps and bounds ahead in terms of life experience).

    I work in government; I see it all the time.

    That said, I’ve also worked in the courts and seen excellent judges. The distribution of excellence was roughly equal in gender – about 3 good male and 3 good female county court judges. The trouble is that the one left over are all male.

    It reminds me of that old adage, that we’ll know we’ve achieved true equality when incompetent women are being appointed to high positions!

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