Natural selection
Last October, the Judicial Appointments Commission invited submissions from lawyers and academics on the topic of judicial selection to encompass a ‘statement of requisite knowledge, skills and attributes and statement of selection procedures’. Seth Tillman asks whether the best candidates are being selected.
As a general matter, the statutory administrative requirements governing appointments to the superior courts of Ireland require that nominees have 12 years’ experience (as practitioners or academics).
There are good reasons that support this standard: that is, to ensure that nominees have practical experience, making it possible for them to participate in the ongoing duties of the courts, absent any lengthy training period.
These requirements also tend to ensure that nominees to the trial courts know how to hear a motion and how to conduct a trial (particularly before a jury) and tend to ensure that nominees to the appellate courts know how to adjudicate an appeal.
Likewise, these requirements tend to ensure that all judges know how to draft judgments, opinions, and orders meeting customary standards of professional competence.
To put it slightly differently, the commission and the elected political leadership choose successful practitioners (that is, barristers and solicitors) to be judges because it is believed that if such candidates can successfully negotiate yesterday’s legal system for their clients, then they are likely to have the knowledge, skills, and attributes to justly administer tomorrow’s legal system for all comers.
Justice as fairness
This scheme for selecting judicial nominees only makes sense if one’s judicial system is a successful, efficient, and just system.
If it is not – if the system is slow, cumbersome, expensive, and opaque – then selecting nominees from among those who know how to successfully negotiate it (and because they have successfully negotiated it) comes with dangers.
The chief danger is that the current process will place those deeply committed to continuing with institutional failure in charge of the system – the current process will ‘place the inmates in charge of the asylum'.
Indeed, it is worse than that.
Successful practitioners have a remarkable tendency to believe that the system is better than it is because they have managed to successfully negotiate it, and they believe it is a just system, worthy of protection against institutional change, precisely because the system chose to elevate them to the senior judiciary.
Sometimes, what is needed are leaders who are willing to reform the judicial system because they have experienced (or, at least, observed) the system’s failures.
The current system requires 12 years’ experience as a practitioner or academic in order to be nominated for a judicial post on one of the superior courts.
Candidates should be asked: ‘Having practised for 12 years, what institutional reforms would you propose? And, once appointed, do you commit to volunteering to serve on the relevant committee(s) to lead and to implement reforms along the lines you propose?’
If, after 12 years of practice, the candidate cannot put forward 12 such reforms (that is, one for each year of practice), then reject that candidate.
Why? The judicial and wider legal culture on this island overvalues the judgment-drafting function of judges. Drafting judgments is one job of judges, but it is not the only one.
Institutional duty
Judges have an institutional duty to govern the courts and the wider legal system. If they cannot do the latter effectively, then their hiding behind even beautifully worded, structured, and scholarly judgments is of little value.
Likewise, if a candidate can only tell shallow horror stories of his unhappy personal and client experiences in the legal system, but has not taken the time to think about solutions and how to implement them, then such a candidate is perfectly useless.
Why give a judicial post to a candidate who thinks so little of his nation, its justice system, and his fellow citizens, that he has no concrete thoughts on how to fix a broken system?
Of course, if the members of the Judicial Appointments Commission and the elected political leadership believe that all is good in the judiciary – and that the justice system needs only to be tweaked and given even greater funding – then my advice should be ignored.
But who really believes that all, in the Irish courts, is as it should be?
Seth Barrett Tillman is associate professor at Maynooth University’s School of Law and Criminology.