The Diversity Factor In The Appointment of Judges

The process of appointing judicial officers is something upon which I have previously written
1. In that article I endorsed the principles articulated by the Bar Association of Queensland, namely that:

1. “The integrity, reputation and standing of the Courts is paramount;
2. The Judiciary must be independent from the other arms of Government;
3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

In her article “Appointing Australia’s highest judges deserves proper scrutiny” 2, Dr Gabrielle Appleby 3asks

• Should judges also be representative of the community that their rulings affect?
• What role should politics play in judicial appointments, if any?

In my experience, as careful as any government might be in selecting its candidates for judicial office, the one criteria that can never be predicted and it may even be the most important, is the effect judicial office and its attendant power will have on the individual office bearer.

Diversity
In respect of the Diversity discussion Dr Appleby said:
“It has also been suggested that a diverse judiciary may bring different perspectives to how justice may be achieved. For example, Justice Bertha Wilson, Canada’s first female Supreme Court judge, argued that men and women often conceive of legal problems differently. Men see problems as arising from competing rights, whereas women see problems as arising from competing obligations. Women therefore emphasise the importance of preserving relationships, not winning or losing.

“Do judges decide cases through the objective interpretation and application of the law, divorced from their personal values and experience? Legal realists argue that not only do judges make judicial choices based on personal values and experience, but that these choices are inherent in the judicial task.

“According to this view, the law often does not yield a single discernable answer, meaning that judges must make these choices. If such choices must be made, there is a strong argument that the personal characteristics of judges ought to reflect the diversity of the community they serve.”

If the personal characteristics of judges are to reflect the diversity of the community they serve, it is instructive to appreciate the pool of candidates from which judicial officers are selected. By the time any legal practitioner rises to the level of competence, experience, ability and renown to be considered for appointment to judicial office, their practice has grown to the stage where they are unlikely to want for paying work, nor would they be struggling to make ends meet financially. The company they keep would unlikely be with people who are wanting for paying work and / or struggling to make ends meet.

That is not a criticism of them, but in my submission is a relevant consideration when a crucial feature of their ultimate task is to “make judicial choices based on personal values and experience”.

When the call is made for appointments to judicial office reflect the diversity of the community they serve, it would be helpful to debate or at least discuss the extent to which that diversity can realistically be reflected in any individual judicial appointment and then the collective judicial appointment to a court or tribunal.

Endeavouring to define what relevant diversity might include can be useful. That diversity includes gender is not news, nor is that it might extend to the diversity of ethnic culture which is now a part of Australian life. Candidates with backgrounds where English is a second language can broaden and deepen the diversity of the Court. To what extent can people with disabilities be considered for judicial office?

The world as seen by someone struggling to find paying work and / or make financial ends meets is very different to someone who is well resourced and with secure paying work. Similarly the world may appear different from the perspective of the people who live with the other aforementioned diversity.

How much weight should be given to the diversity factor when considering the overall selection criteria for appointments to judicial office?

Conclusion
In my submission, it is difficult to say the extent to which the diversity factor will improve the quality of law and justice dispensed by judicial officers appointed with diversity as a relevant consideration in the process. As I said earlier in this article, the one criteria that can never be predicted and it may even be the most important, is the effect judicial office and its attendant power will have on the individual office bearer.

Broadening and deepening the diversity of the judicial officers appointed to our Courts is a positive step. Seriously discussing the extent to which that diversity can realistically be reflected in any individual judicial appointment and then the collective judicial appointment to a court or tribunal will assist us in appreciating the limits to which that diversity factor can be advanced.

1. A Crisis of Confidence 
2. Tuesday 9 December 2014 
3. Deputy Director, Public Law and Policy Research Unit, Adelaide Law School at University of Adelaide