Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Recruiting the Supremes

01 March 2013

There are three new justices of the Supreme Court – Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. Lady Hale remains the only women.

Adam Wagner has written ‘Attack of the Clones: Supreme Court keeps its white male first eleven’. He argues that the current system of appointments being decided by an ‘opaque commission consisting of senior judges’ is unsatisfactory.

I agree. But designing a good appointment system is quite difficult.

The vast majority of judges are appointed by the Judicial Appointments Commission. They, broadly, apply a three stage system. A written test, in which candidates are presented with a legal problem, some legal material and some questions under exam conditions. An initial sift is applied based on the results of this. The successful candidates are then assessed via a role-play exercise in which they act as a judge in a fictional case using actors and an interview. The final decision is made on the basis of the candidates performance in all three stages.

All in all, I think this is a fairly good system. It’s certainly better than the old ‘tap-on-the-shoulder’ method.1

But I don’t think it would be a good way of appointing to the Supreme Court.

The JAC system is decent at identifying people who would be good judges and eliminating people who would be bad judges. The problem is that the pool of people who conceivably might be appointed to the Supreme Court is made up of good judges, and doesn’t contain anyone who would be a bad judge.

The vast majority of Court of Appeal Judges would do a perfectly good job in the Supreme Court. But the test for appointment to the Supreme Court shouldn’t be ‘Is this person good?’ Or even ‘Is this person extremely good?’ The Supreme Court is the summit of the UK judicial system. You’re trying to identify the people who have that spark of brilliance that puts them a step ahead, even of the high standards in the Court of Appeal.

That’s always going to be difficult. It’s more like awarding something like a Nobel Prize than a conventional appointment decision. I think it’s unlikely to come through in something that looks like the JAC selection method. It’s simply not what it’s designed to do.

Adam suggests a much more open process, including the possibility of committee hearings. As he predicts, this fills me with horror. First, I think it would inevitably lead to the sort of politicization of the judiciary that plagues the US system. Second, even if it didn’t, I don’t think it would be a good way of selecting the right people. The ability to engage in a public symposium on the law isn’t the same as the the ability to be a good Supreme Court Judge.

My own stab at a decent system would be a detailed person specification, which included the need to maintain a balance of expertise and experience across the court. I’d invite candidates to apply by presenting a body of work (which would normally be judgments they’d delivered but could also include work as a practitioner or academic). An independent body (probably the JAC) would make the decision on the basis of the submitted work, and a series of interviews – but with the weight on the body of work. Membership of the selection panel would be public. It would include judges, practitioners and other interested parties, such as academics.2

This would, of course, be imperfect. But one advantage of appointing to the Supreme Court is that a good candidate should have already demonstrated their potential. The nature of judging is that much of that work is available to consider. By focusing on analysis of a self-selected portion of that, rather than the subjectiveness of a more general impression of an individual by their colleagues or the inevitably partial and limited information from interview, I’d hope to get close to the best possible decision.

None of this answers Adam’s second point, which is the current system accepts the convenient fiction that the judges have no politics. Of course, they do – at least in the small ‘p’ sense. Different lawyers and judges have different philosophies of life, different approaches to the law and different experiences. Although they try hard to put these aside, they can be important to their decisions.

My own view though, is that attempting to examine these sorts of views during an appointment process or to use appointment decisions to achieve any sort of balance is a bad idea. Better to strive for an open, fair and meritocratic system and to allow the random element to give us a balance of different backgrounds and views.

  1. Although that too had advantages. I suspect, for example, that some excellent judges had their arms twisted onto the bench in a way that isn’t possible now.

  2. One of the downsides of this plan is that selecting the independent panel might be almost as difficult as appointing the Justices.

blog comments powered by Disqus