Sunday, April 8, 2012

Poor Judgment

The controversy over appointment of judges is (luckily) a spectacle that we are typically spared in Australia.

As a lawyer, and moreover one specialising in criminal law, I strongly believe that there are few things less edifying than "electing" judges.

There are probably few other decisions that should be as non-political.  After all, judges are tasked with applying the laws made by the legislature. They are a separate head of government, and should be entirely divorced from the political arena.

It goes without saying that judges will make decisions that have political consequences.  But there should not even be the slightest hint that any decision is coloured by an ideological perspective.

Nowhere is this unedifying spectacle more obvious than in the United States.

In the US all Supreme Court judges need to be "confirmed" by the Senate. This means that a majority of the US Senators need to vote to "confirm" an appointment made by the President.

It is a grotesque spectacle.  Every decision, every on-the-record word ever uttered (and many more off the record comments) are raked over by opponents in a desperate attempt to shape the court. Abortion being the political hand-grenade that it is in the US, the justice's position on abortion alone will often define whether he or she is even nominated.

The particular power of the US Supreme Court (for reasons beyond the ambit of this post, far greater than the Australian High Court) as well as the appointment for life (as opposed to the compulsory retirement at 70 in Australia) mean that an appointment can radically affect the Court and, consequently, the country for decades to come.

All in all, it is yet another reason I am grateful to live in Australia.  Here, the AG consults widely, lawyers speculate frantically, a recommendation is made by the AG to cabinet, and the cabinet makes a recommendation to Governor General.

The process in NSW is identical.  The AG takes advice, and makes a recommendation.  Whilst there are obviously political considerations, the process is remarkably apolitical, and whilst there will always be a wide range of views, the particular politics of an appointee are seldom in issue.

And so it should be.

Judges and Magistrates of course are human beings with their own particular prejudices, views and opinions.  Some will sentence harshly in criminal matters; others will tend to find duties of care others cannot in negligence matters; still others will often accept the word of an employee over that of an employer in a work-safety case.

But the close supervision of higher courts (as well as monster egos that cannot countenance being put in their place by higher courts) mean that, as a rule, NSW courts are as predictable and reliable as could be expected from a system run by human beings.

That is why this article came as such a surprise when I saw it yesterday morning.
The article went on to say the following:
There are a few things that are just plain stupid about what Phelps has had to say, working on the assumption that he did in fact say them.

The first is the idea that we can be choosy about who we appoint as judges (and, for that matter, magistrates).

There are a very limited number of people who have the necessary ability, experience and temperament to be a judicial officer.  Moreover, just about anyone good enough to be appointed a judge takes a significant pay-cut to do it (often reducing their income by as much as 75%). We simply cannot afford, if the standard of the bench is to be maintained, to start considering "political leanings".

The next assumption is that the system would be better if we did consider such matters.  Firstly, as discussed above, the ideology of a judge means less than in the US.  Sure, there are judges who are more conservative - but they are more to do with conservative views about the role of the judiciary, rather than conservative political leanings.

This is especially so in any court below the High Court - to suggest otherwise would betray a profound ignorance about the operation of the legal system.

The most infuriating part of this article, however, was the below:
To question the suitability of a judge based upon a client they have represented is truly disgraceful.

Firstly, as a spokesman for the AG Greg Smith noted, when one is at the bar the "cab-rank rule" applies.  This means that if a person approaches you to act for them, you HAVE to take them on, as long as they can pay your fee and you have capacity.

It's the same as a queue of cabs (hence the name) - a cab doesn't get to reject a fare because they don't like the journey length, and a barrister doesn't get to reject a client because he or she finds them morally reprehensible.

There are a number of reasons for this, but the most important one is that everyone is entitled to representation. As someone practicing in criminal law myself, I understand that better than most - I represent some people who have done or are accused of doing awful things.  What kind of legal system would we have if such people were not able to obtain representation but rather had to fend for themselves?

That point is the basis for my second criticism - who is to say that the fact that these barristers represented Mamdouh Habib and David Hicks tells us anything at all about the kind of judge they would be?

I know these judges only by reputation, but I can assure you that the fact they acted for these clients tells us absolutely nothing about their politics or their prejudices.

To criticise Mr Maiden on the basis that he acted for Orkopoulos is, to put it simply, gutter politics at its worst.  As a barrister, Mr Maiden had no choice whatsoever when he was approached to act for Orkopoulos, and to suggest otherwise is unfair and misleading.

Finally, it is plain wrong to suggest that the previous clients of a lawyer tell us which side of the fence they will fall on when it comes to dealing with serious criminals.

There are a lot of defence lawyers I speak to who have become remarkably cynical about the stories their clients tell them.  By contrast, a great number of prosecutors (who only hear the stories filtered through the lawyers) display remarkable compassion towards accused persons.

Typically a magistrate or a judge is lenient to a fault upon being appointed, and then starts to become more cynical and hard-hearted as their career drags on.  That is not ideal, given that all judges would (in an ideal world) be 100% consistent and predictable, but my point is that any leniency almost always has nothing whatsoever to do with the judicial officer's background.

To suggest otherwise is grossly unfair to those judicial officers, and a concerning hat-tip to the overly politicised and frankly unpleasant judicial system in the US.

Here's hoping it is the last we hear of it.


  1. Thank you for this observation.
    Couldn't believe even Phelps would be that destructive.

  2. There are cases sometime that mistaken lead to poor judgement.