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The Forum > Article Comments > Appointing judges judiciously > Comments

Appointing judges judiciously : Comments

By Geoffrey Davies, published 6/9/2006

Political patronage is not the way to make judicial appointments.

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Politicians should not be responsible for appointing judges. I’m sure we’re sick of seeing our courts used by political parties as parking stations for party hacks, time-servers or like minded people. A political party was responsible for the recent comical theatre in NSW with the players and props being; the judge it appointed; vials of blood; the demon drink; a bemused state premier; and a hard-to-steer car. Of late we have all marveled at a judge who managed to communicate with the dead and asked Elvis to take the judge’s car for a spin. The judge’s car was detected speeding so we deduce that the judge’s respect for the law was not shared by Mr Presley.

If a body is incorporated that has the responsibility of making judicial appointments the real assignment will be to avoid stacking that body with political appointments.
Posted by Sage, Wednesday, 6 September 2006 10:31:26 AM
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This really is just another device to appoint boring old do nothing appointees. The common law has developed because of the tension between radical and conservative types. This is not just true of recent times but of old. Despite the positivist pretensions of mr davies judges have always been political appointments. In my view they always ought to be. That way the judiciary wont become enfeebled by do nothing "moderates" who will be afraid to jump anywhere for fear of offending somebody. For those who favour the free market approach of the common law, just imagine its state had the old pre capitalis doctrines not been overturned by the appointments of the late C18 early C19 centuries
Posted by musonius, Wednesday, 6 September 2006 10:06:50 PM
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So, you don't want judges appointed based on political criteria. Fair enough, but you then immediately contradict yourself by seeking to excuse females candidates from meeting the 'maxima' criteria for the most suitable appointee. Sounds politically driven to me. And highly illogical. What other sectarian interests should be make special provision for?

I think your analysis of what is wrong with the judicial system is off the mark.

The judicial system is the last remaining bastion of privileged power left over from medieval times. It has not been exposed to the democratic forces that have transformed the rest of society. They are an elite and self-perpetuating group who wield enormous power, and yet are accountable to no-one. Politicians have to face the voters, CEO's have to face their shareholders, union bosses have to face their members, but the judiciary do NOT have to justify themselves to anybody. And then they hide behind the screen of 'independence'.

Judges must be held answerable to the people as much as politicians do.

It is time to drag the judiciary kicking and screaming into the modern world. However, your suggestions aren't going to do it.
Posted by NODDY, Thursday, 7 September 2006 11:58:06 AM
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A few points.
I agree that judicial appointments have always been to greater or lesser degrees political. That system has produced some remarkable jurists and undoubtably some terrible ones too.
However, this is the type of spiel that comes up from time to time - usually when a controversial appointment is made or a judge hands down a sentence which some people (newspaper editors mostly) consider to be grossly inadequate.
I wonder at why the speech then deteriorated into a peculiar and narrow argument for affirmative action. If the process must be slanted to throw up more female appointments why not more of other 'minorities' (women are clearly not an actual minority - either demographically in the national population, nor the law profession as a whole and the bar is reflecting growing numbers of women too). How much weighting do we give to ethnic minorities, religious minorities, etc etc etc...? Why can't we simply appoint the most suitable candidate?
Oh, it is also not strictly true that judges are not answerable to anyone - they can indeed be removed. Ok, the process is not easy but it can be done. And security of tenure is an important element of the judicial role. If justice is to be imparted without fear or favour then considerations about whether a decision is more or less likely to curry favour must be far from the judicial mind.
If the writer truly believes that judicial appointments must be more transparent and accountable than surely he would support rolling terms for judges and possibly even elections?
I do not support either but this notion just raised its head in today's West. Electing judges is, to my mind, a sure way to create an American style system of harsh punishments, public humiliation, creative sentencing, over-crowded jails and hysterical outcomes. No-one is going to lose votes by being seen as harsh on criminals. Votes are lost in careful deliberation, weighing the relative merits and crafting an appropriate and proportionate response.
Posted by J S Mill, Thursday, 12 October 2006 6:44:49 PM
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