ICJ / CIJL AND CAJ
SEMINAR, BELFAST, NORTHERN IRELAND
8 JUNE 1999
LEGAL INSTITUTIONS IN TRANSITION
MODES OF APPOINTMENT AND TRAINING OF JUDGES -
A COMMON LAW PERSPECTIVE
The Hon Justice Michael Kirby AC CMG *
OLD WAYS
Northern Ireland, like Australia and most
other jurisdictions of the common law inherited from England the
old ways of going about judicial appointment and the training
of judges.
Unlike the countries of the civil law tradition,
it rejected a career judiciary with training and promotion inside
the ranks. Instead, judges, whether of superior or inferior courts,
were chosen (almost without exception) from members of the practising
legal profession. Indeed, they were usually chosen from an even
smaller group, being barristers whose full time work was normally
in advocacy before courts. For the superior courts, appointment
typically from the senior members of the Inner Bar whose professional
skills and learning had earlier been recognised by their appointment
as Queen's Counsel.
Under the old ways the judge, upon appointment,
was given no formal training to ease the path from the life of
an advocate to a life on the bench. Usually, after a formal welcoming
ceremony, at which extravagant praise was voiced about the judge's
merits, he or she (usually he) was scarcely over the pleasure
of the event when the rude necessity to sit in court descended.
For most, the transition from the well of the court to a seat
on the bench appeared to go smoothly enough. Occasionally, the
novice would be seen to leap to the feet or to cry "I object"
when a question was asked or answer given that seemed objectionable.
But the kind of person who was appointed to judicial office had
normally had such a long experience as an advocate in the courtroom
that the transmogrification was relatively painless. In most cases
it turned out to be astonishingly successful. I say astonishingly
because the qualities inherently required of an advocate are substantially
different from those required for a judge. Truly, in mid-life
and mid-career the appointee has the challenge of a virtually
unaided translation to large public responsibilities for which
the only real preparation was the observation, over many years,
of other judges at work.
The training of judges, in a formal school
or college, as a prerequisite to the commencement of judicial
service, or as an accompaniment to years of service, was, in the
old days, out of the question. In part, the resistance flowed
from the fact that this had never been the way it had been done
in England which, in the judiciary (as in so many other things)
adored the gifted amateur. In part, doubtless, it was because
the English way of doing things was cheap to the public purse
and relatively efficient. The private sector, of the advocate's
practice, was thought to give the judge the necessary preparation
at no cost to the state.
Setting up schools and colleges for judicial
education is an expensive business. It involves the provision
not only of the infrastructure and the personnel but also diverting
the judicial novice from the performance of judicial duties. As
these are at a premium in every common law jurisdiction, and because
judge power is scarce as the case lists expand, the notion of
"lost time" in judicial training was uncongenial to the Executive.
But there were also theoretical objections. In England, Lord Devlin,
a great judge, was most critical of the Bridge Report which had
suggested that English judges should undergo specialised training1:
- "I regard with a degree of indifference verging on contempt
the criticism of judges that demands for them a type of training
which render them more like assessors or expert witnesses than
judges of fact and law The judge's function is to listen intelligently
and patiently to evidence and argument to evaluate the reliability
and relevance of oral testimony and finally to reach a conclusion
based on an accurate knowledge of law and practice The capacity
of being a judge is acquired in the course of practising the
law".
Lord Devlin's view was supported by Lord Hailsham
2.
The explicit fear expressed by Devlin was that judicial training
would become an illicit means of inculcating in the judicial branch
the values and opinions of the Executive Government. In the United
States, with a different organisation of the legal profession (and
without the specialised
cadre of advocates known as barristers)
the necessity to provide schools and colleges, training and instruction
was clear in some cases. But this was not thought to be the case
in countries which followed the English model. A fine Australian
judge, Gordon Samuels, remarked in 1980
3:
- "The best way of maintaining judicial competency is to appoint
reasonably competent judges, who already know enough to embark
on their task with tolerable efficiency. If it is recognised
that a large proportion of new appointees cannot perform competently
without prior instruction, then the system of selection has
failed, and basic training is little more than a means of propping
it up".
There were similarly settled ways for the selection
of the judiciary. Whereas in civil law countries, those who would
advance through the ranks were persons who entered college after
university and spent a lifetime as a member of the judicial branch
and whereas in the United States formalised procedures of selection,
confirmation and even election were the norm, things were different
in most of the jurisdictions of the common law. It was true that
independence constitutions commonly introduced new systems of appointment
in many new Commonwealth countries. These usually involved a Judicial
Services Commission comprising representatives of the legal profession
and of the judiciary to temper the judicial appointments of the
politicians. There was no suggestion of election: an American extension
of democracy thought in most parts of the world quite unsuitable
to the choice of judges and to the need to secure and maintain in
office independent and courageous persons who (if required) would
actually stand
against the tide of popular opinion. Even
formal confirmation hearings were regarded as an anathema. The instances
in the United States involving Judge Bork and Justice Thomas are
frequently mentioned - but there are other equally depressing stories
about the confirmation process
4.
Instead of these systems of choice or recommendation
by a Commission, the old ways involved a remarkably simple procedure.
Appointment to the Bench was in the gift of the elected Executive
Government of the day. A principal political officer would make
the eventual proposal (in England the Lord Chancellor; in Australia
usually the Attorney-General). The decision to appoint or not,
or to select amongst candidates, would be made by the Cabinet
of politicians, usually in the midst of other pressing political
business. Once the new appointee was chosen, his or her name would
go forward to the Queen, the President or a Vice-Regal representative
for formal confirmation. That was it.
ADVANTAGES OF THE OLD WAYS
There are many defects in the foregoing description
of the old ways of appointment and training of judges in the courts
of the common law. Some of the defects explain the invention of
new systems for appointment and training now followed in many
countries of the new Commonwealth and the established systems
of election, appointment, confirmation and formal training which
are a feature of the judiciary of the United States. I will turn
to these innovations. But first, I want to note a number of important
values which the old ways preserved in jurisdictions, such as
Northern Ireland and Australia.
As in most things in life, the old ways were
not wholly bad. As in many things long settled, they had reasons
behind them which explained their endurance. In considering changes
to the settled practice hitherto followed in the matter of appointments
and training of judges, it is as well to start with a recapitulation
of the advantages of the systems that have been followed to date:
- So far as appointment is concerned, there can be no doubt
that there are important strengths of the common law system
over that followed in civil law countries. A person appointed
to the judiciary in middle years, after having established
a significant legal career in the private sector, is likely
to have a different attitude to the office of a judge than
a person who has never done anything else, has always worked
in the public sector and who has been dependant on superiors,
bureaucrats or politicians for advancement to higher judicial
office. It has always seemed to me to be an explanation
of the strongly independent cast of mind of the judge of
the common law tradition is that he or she will ordinarily
not consider the judicial office to involve service to the
government. On the contrary, those who have spent the better
part of their lives in the successful pursuit of functions
as an advocate (or more recently as a senior solicitor,
government lawyer or academic) will tend to have a different
point of view to the person whose life has been spent in
various positions of government service. This attitude of
mind is extremely important to the way in which judges of
the common law go about their work and to the power which
they exercise on behalf of the people whom they serve. It
explains, for example, why the reasons of judges of common
law courts are more discursive, longer and less obviously
syllogistic than those of judges of the civil law tradition.
There is a greater candour. There is greater willingness
to explore the major and minor premises which explain the
decision in hand. Nowadays, there is less self-deception
that the words of constitutions or statutes are unambiguous,
that past precedents of the common law fill all the gaps
needed to meet new circumstances or that policy and legal
principle have nothing to do with the decision in a particular
case.
People nurtured in the private sector are, it seems to me,
more likely to be questioning and candid about such matters.
They are likely to be more insistent upon the right to dissent
(not often a feature of the jurisdiction in civil law countries).
They are prone to demand the opportunity to explain honestly
and in detail the reasons for their opinions. They do not
pretend that the law is always clear and unambiguous lest
ambiguity or dissent might unsettle obedience to government
and respect for the law5.
There is another strength in the flexibility which the
politicians of the day had in choosing the judges. In the
right hands, it meant that appointees could reflect, over
time, and in a very general way, the differing philosophies
of successive governments. There was never a precise correlation
in this. Where governments rarely changed, correctives often
emerged as (I would suggest) the appointments of high quality
to the House of Lords in the last years of the previous
Conservative Government. Governments could sometimes be
greatly disappointed by the decisions of their appointees
once safely in office. But the old ways did allow light
and shade. There is a risk in judicial commissions and legislative
confirmation proceedings that the appointment process will
opt for the "safe" or "unknown" candidate rather than the
intellectually vibrant, energetic or bold appointee. Judge
Bork was brought down largely by his mass of academic writing
revealing his opinions on a great range of topics. Studies
of the United States scene have demonstrated a significant
fall-off in the academic writings of judges of the United
States Courts of Appeals who may be aspirants for appointment
to the Supreme Court6.
The old ways could sometimes result in the appointment of
controversial candidates who would never make it through
a club-like astrosphere of a judicial commission or the
political circus of a legislative confirmation.
- There is another feature of the old system of appointment
which is connected with this. Many defenders of the old method
of appointment argue that it ensured that the politics of
candidates was treated as irrelevant. If by politics it is
meant that politicians would ignore the projected philosophical
stance of a candidate, it is probably true that this mattered
less in a jurisdiction such as the United Kingdom, where there
is no comprehensive written Constitution and where, until
recently, there was no formal bill of rights. In a country
such as Australia, where the federal Constitution is extremely
important to the division of powers in the nation between
the Commonwealth and the States, the perceived social values
of the judges are inescapably significant to the governments
appointing them. The present Chief Justice of Australia earlier
introduced an element of Realpolitik into this debate7:
"There is nothing that makes one person appear more enlightened
to another person than that the former agrees with the latter's
views. It is only human nature that politicians, like everybody
else, tend readily to accept the notion that a particular
person is wise and enlightened when they know that that person
shares their opinion on matters affecting law and society
That is just human nature".
I venture to suggest that this has always been the case
wherever politicians have been involved in the appointment
of judges. It is not necessarily a bad thing, unless the
convention of seeking high quality candidates is ignored
or unless a long-term government of one political persuasion
seeks to stamp on the judiciary partisan appointees unquestioningly
loyal to its values. If these abuses are avoided by the
observance of conventions, the right of the elected representatives
of the people to appoint the judges from those senior, qualified
lawyers whose general values they hope will be in tune with
their own is a means, which defends the judicial institution
from uniform or monochrome social values. Under the system
copied from England, it is legislators who have the final
say in removing judges from office for proved incapacity
or misconduct. It is therefore not entirely inappropriate
that, in parliamentary democracies, representatives of the
legislators in government should have the final say in the
matter of appointment. This gives an element of democratic
legitimacy to the judiciary. Of course, once appointed,
the judge must be independent of party politics and must
avoid all appearance of partisan allegiance.
- The lack of formalised judicial education had the advantage
that most governments would hesitate before appointing a person
to judicial office who did not have easy acquaintance with
the running of a court and the business of law as the courts
practise it. In this sense, the lack of formal training tended
to reinforce the mode of appointment from the select band
of experienced senior advocates. They could be trusted, once
appointed, to perform their duties easily, with skill and
without embarrassment to the government which put them there.
The lack of institutional courses reinforced the high individualism
of the Bench. This, in turn, was a defence against orthodoxy
and the waves of received wisdom and popular passion against
which the judiciary is sometimes essential to defend the individual.
It is rare today to see the traditional common
law method of appointment defended and the previous lack of formal
judicial training explained. But it is important, in addressing
the options for reform, to realise that the old ways did not develop
and persist wholly by accident. They had merits. They had rational
supporters. In devising any new procedures that will be put in their
place, it is essential to keep the values defended by the old ways
in mind.
NEW WAYS - SELECTION
A number of features of the outcome of the
established procedure for judicial selection have lately cast
doubt on whether it is still appropriate for the judicial institution
in common law countries as the judiciary readies itself for service
in the 21st century.
Despite the opportunity for varied appointments,
from different backgrounds, the reality is that in most common
law jurisdictions the judiciary is fairly uniform, usually being
a reflection of the composition of the senior Bar. The kinds of
people who make it to the ranks of Queen's Counsel (or Senior
Counsel as they are now known in a number of jurisdictions, including
of Australia) are often those with substantial commercial or other
practices. They may not reflect an entire cross-section of talent
of the Bar, still less of the legal profession as a whole. Furthermore,
there remains a serious under-representation of women, of ethnic
or other minorities and sometimes a disinclination to look to
other, equally independent minded lawyers, who have served in
senior positions in universities, in large law firms or even perhaps
in government departments. In the past two decades, an increasing
number of appointees to the judiciary in Australia - especially
the federal judiciary - have come from the new ranks. This has
occurred because of a personal commitment of individual Attorneys-General
to appoint judges from outside the lists of the senior silks,
whilst insisting on professional skill.
Accepting that it is unlikely that any common
law jurisdiction would throw over its procedures of appointment
for those followed in civil law countries, and accepting further
that it is unlikely that we would now follow the Jacksonian model
and move to the election of judges (as occurs in 33 States of
the United States) the options for reform in the procedures for
appointment are principally as follows:
- 1. To introduce a procedure whereby the legislature elects
judges, at least of the highest courts;
- 2. To adopt the procedure of advice and consent, with formal
confirmation hearings, as followed in the United States for
the appointment of federal judges;
- 3. To establish, by judicial decision8the
special prerogative of the judges to be involved in the business
of appointment of the judiciary so as to maintain the quality
of appointments and to ensure the true independence of the judiciary
from the other branches of government;
- 4. To establish some form of judicial appointments body in
which the voice of sittings judges will be heard but at a table
at which the Executive Government and perhaps community groups,
reflecting democratic will, has a say or the predominant say,
in the final appointments; and
- 5. To introduce a procedure of formal consultation before
appointment but continuing to reserve to the Executive Government
the final say.
The involvement of the legislature occurs in
Germany where judges are appointed under a system of election by
the legislature
9.
In Israel, almost a country of the common law, judges are selected
by a committee comprising representatives of the legislature, the
Executive, the judiciary and the Bar. An analogous system appears
now to operate in South Africa. Candidates are interviewed and voted
upon.
Because of notable, and highly publicised
examples, most lawyers are familiar with the procedures followed
in the case of appointments of federal judges in the United States,
whether as Justices of the Supreme Court or as judges of the other
federal courts. The President's nominees are investigated by the
Department of Justice, the Federal Bureau of Investigation, the
White House, the American Bar Association and the various lobby
groups in the community prior to consideration by the Senator's
Judiciary Committee, in advance of their hoped for confirmation.
In some States of the United States, the Missouri Plan involves
the Governor of the State appointing a judge from a list of qualified
candidates screened by a nominating committee. Within a year after
appointment, however, the judge must stand for election where
he or she can be confirmed or recalled. To most of us, the involvement
of the electorate is wrong in principle. Moreover, it is likely
to be a formula for judicial caution where sometimes boldness
and courage are absolutely necessary.
In India, in a controversial decision of the
Supreme Court, a majority held that the constitutional requirement
that in the case of a judge other than the Chief Justice, the
Chief Justice of India shall always be "consulted" by the President10,
"consultation" meant concurrence. Thus, without the agreement
of the Chief Justice of India, no judge could be appointed to
the Supreme Court. Whilst there may be special conditions in India
which gave rise to this decision, whether as a matter of interpretation
of the language of the Constitution or as a matter of policy,
few countries of the common law are likely to go down the same
path. A judiciary, and particularly a judiciary of an ultimate
constitutional court, whose members are effectively controlled
solely by the judges themselves might tend to adopt a rather uniform
outlook. It would lack entirely the democratic legitimacy which
the involvement in the process of persons elected directly by
the people, gives to the current system.
The establishment in new Commonwealth countries,
often under constitutional provisions, of Judicial Services Commissions
was designed to formalise the protection of the judiciary against
excessive politicisation, incompetence, corruption and other such
vices. It would be necessary to be on guard that such a commission
did not become a further vehicle for judicial orthodoxy: each
generation replicating itself in mirror image of its own esteemed
qualities.
The International Bar Association's Code
of Minimum Standards of Judicial Independence provides11:
- "Participation in judicial appointments and promotions by
the Executive and legislature are not inconsistent with judicial
independence provided that the appointments and promotions of
judges are vested in a judicial body in which members of the
judiciary and the legal profession form a majority".
This would no doubt be acceptable to most members
of the legal profession. But many politicians, and not a few citizens,
would question the necessity and wisdom of removing political choice.
Perhaps it depends on the society concerned. In those in which conventions
rule which ensure the appointment of adequate women and members
of ethnic, religious and other minorities, the need for such a commission
may be doubtful. In societies which are divided along such lines,
the establishment of institutional arrangements may be necessary.
At the very least, a more open procedure of
consultation and appointment seems to be required. In Australia,
legislative provisions require consultation by the federal Attorney-General
with his State counterparts before appointing the Justices of
the High Court12.
The procedure of consultation is now quite formalised. The federal
Attorney-General also takes considerable time in consulting judges,
legal professional groups, political parties and others. But there
is no assurance that the consultative process will deliver a consensus
candidate. In a recent appointment to the Court, it was widely
rumoured that the Attorney-General took one name to Cabinet but
another person was appointed. In some States of Australia, for
appointments to the magistracy at least, advertisements are now
lodged and specialist selection committees interview candidates
before appointment. Whilst the final say remains that of the politicians,
the anterior procedure is more open. There is some evidence that
it has resulted in appointees of greater diversity and with no
suggested fall-off in professional skill and appropriate temperament13.
NEW WAYS - JUDICIAL EDUCATION
Within Australia, a series of radio lectures given
by me 15 years ago on the judges14included
the first proposal, at a national level, that judicial training
should be institutionalised. It led to a vigorous public debate
in which my proposal was often roundly condemned. Most judges
of the time (1983) thought my ideas to be unnecessary and even
dangerous.
However, in the ensuing years, the establishment
of the Judicial Studies Board in Britain (1988), the introduction
of special courses for new appointees in New Zealand15and
ultimately the joint activities of the Australian Institute of
Judicial Administration (AIJA) and the Judicial Commission of
new South Wales, have seen the opposition to training crumble.
A past Chief Justice of Australia, Sir Anthony Mason, observed
in 199416:
- "There has been some apprehension that educational programmes
[could compromise] judicial independence. So long as these programmes
are left in the hands of the AIJA, the Judicial Commission and
the courts, I do not think these apprehensions will be realised
The need to maintain judicial independence is no argument against
the desirability of judges becoming better informed".
One factor in the appreciation of the need for
the provision of introductory courses for judges is the growing
realisation of the inadequacies of the declaratory theory of the
judicial function and of the choices which judges (especially of
the higher courts) have to exercise every day. Informing those choices
with policy oriented courses as well as courses in judicial technique,
can only be to the advantage of the appointee. Mixing with other
new appointees - and especially those from different jurisdictions
of Australia and from other common law jurisdictions of the region
- is also of great benefit. Lecturers are chosen to reflect a happy
mixture of experienced judges and lawyers and challenging academics
from Australia and overseas. Most of the new appointees find the
courses extremely helpful. No one now, in Australia, suggests that
they should be disbanded.
On the contrary, in April 1999 the Judicial
Conference of Australia announced a plan to establish a National
College to educate the judiciary, including in such matters as
gender issues, cross-cultural awareness and new technologies.
The proposed college would also have a role in continuing professional
education. The Director of the Judicial Conference, Professor
Stephen Parker indicated: 'Judges are so busy it is unrealistic
for them to seek out their own professional development Judges
have an increasingly important role in society. More things are
subject to law now than in the past. These are such important
appointments in public life that the time has come for them to
be more open"17.
National arrangements for the training of the judiciary in Canada
have been long established. For the last decade, Australia has
got by with improvisations. It is now on the brink of considering
a more substantial and clearly national institution, possibly
in conjunction with a university18.
The heretical idea has thus become orthodoxy.
The dire predictions of disastrous consequences have not been
borne out. It is a sign of the open-mindedness of the judiciary
and its willingness to change, that most judges in Australia today
acknowledge the value of formal orientation procedures.
When I was President of the New South Wales
Court of Appeal, I invited new Judges of Appeal to sit with me
to observe the very busy motions list before they tackled the
list on their own. It was a tribute to their integrity and curiosity
that even judges who had served for many years in trial courts
gladly embraced the opportunity. Once judicial apprenticeship
would have been regarded as an admission of self-doubt or incapacity.
Now, judicial education and on the job experience are regarded,
in most courts, as the norm. The capacity of virtually all recently
appointed judges to access the Internet and to tap into websites
specifically designed for new judges means that the formal processes
of education are supplemented by those offered in the new technology.
CONCLUSIONS
Thirty years ago the subjects of this paper
were hardly discussed in most jurisdictions of the common law.
When mentioned, change would generally be denounced as unnecessary
and mischievous. But now changes in judicial education are clearly
established. Changes in the appointment process have occurred
in some places and are likely to be adopted in most others.
The old ways had strengths. They could not
have persisted for so long in common law jurisdictions if that
had not been so. But these are rapidly changing times for the
law, for society, for technology and for community values. The
old ways are now questioned. The genius of the common law has
always been that of preserving the good of the past whilst discarding
the outdated, the irrelevant and the erroneous. I have no doubt
that this is the way in which Northern Ireland, Australia and
other jurisdictions of the common law will approach the important
and sensitive topics of this paper.
| * |
Justice of the High Court of Australia. Commissioner of
the International Commission of Jurists.
|
| 1 |
P Devlin, The Judge, OUP, 1979, 36-47.
|
| 2 |
Lord Hailsham, Hamlyn Revisited: The British Legal System
Today, London, Stevens, 1983, 50-51.
|
| 3 |
G J Samuels, "Judicial Competency: How Can it be Maintained"
(1980) 54 Australian Law Journal 581 at 585.
|
| 4 |
J A Maltese, The Selling of Supreme Court Nominees, Johns
Hopkins, Baltimore, 1995. See esp the defeat of the nomination
of John J Parker, 52ff.
|
| 5 |
L Mailhot and J D Carnwath, Decisions, Decisions, a
handbook for judicial writing, Y Blais, Quebec, 1998 (reviewed
(1999) 73 Australian LJ 290 at 291-2.
|
| 6 |
J Gaille, "Publishing by US Court of Appeals Judges Before
and After the Bork Hearings" (1997) 26 Journal Legal Studies
at 371. cf M D Kirby, "Attacks on Judges - A Universal
Phenomenon" (1998) 72 Australian Law Journal 599 at
606.
|
| 7 |
R T Thomson, The Judges, Sydney, Allen and Unwin,
1987 quoting Gleeson CJ at 72.
|
| 8 |
cf Supreme Court Advocates Association v Union of India
[1994] AIRSC 268; [1993] Supp 2 SCR 659.
|
| 9 |
L Armytage, Educating Judges - Towards a New Model of
Continuing Judicial Learning, Klewer, the Hague, 1996,
59.
|
| 10 |
Indian Constitution, s 124(2).
|
| 11 |
New Delhi, 1982, par 3a.
|
| 12 |
High Court of Australia Act 1979 (Aust), s 6.
|
| 13 |
Armytage, above n 9, 62.
|
| 14 |
M D Kirby, The Judges, Boyer Lectures 1983, 25-26.
|
| 15 |
I Richardson, "Changing Needs for Judicial Decision-Making"
(1991) 1 (Aust) Journal of Judicial Administration 61.
|
| 16 |
A F Mason, "The State of the Judicature" (1994) 20 Monash
Uni Law Review 1; A F Mason, "The Role of the Courts
at the Turn of the Century" (1993) (Aust) Journal of
Judicial Administration 156 at 166.
|
| 17 |
S Parker, "Back to School for Judges Under National Reforms"
in The Age, (Melb) 14 April 1999 A3.
|
| 18 |
Ibid.
|
