In a week in which more attention was drawn to our own judicial appointments system with the announcement of just four solicitors among 32 new Deputy High Court appointments, there has also been much attention paid to judicial appointments in the USA. As is well-known, there is a battle in the US Senate Judiciary Committee over the appointment of President Trump’s new nominee to the US Supreme Court. The question is whether anything can be learned from that process to apply here.
The circus of appointments to the US Supreme Court seems deeply unappealing to our own less showy traditions. The demonstrations and grandstanding by activists on either side of the political divide do not reflect how we think the serious matter of appointing judges to the highest courts should be handled. The reality is doubtless more complex, but the impression left is that US judges no longer exercise their own independent legal thinking in politically sensitive decisions, but merely reflect one or other pre-existing political position, as if they are automatons.
There are serious issues at stake because of the unique role of the Supreme Court as the final interpreter of the constitution. Those on the left fear that the court will shift to the right on issues like abortion rights, affirmative action and gay rights, and there is particular concern, given the current heated atmosphere in Washington over presidential conduct, about the nominee’s views of presidential powers and the ability of the law to restrain them. Of course, the right would be happy with just those possible shifts.
But there is one striking fact about the current appointment process in Washington of which we should take note. That is that the American Bar Association (ABA) has given evidence to the Judiciary Committee, as it always does. The ABA may be suffering from grave consequences of falling membership, spiralling income and major job cuts, but its committees continue to do sterling work.
The ABA Standing Committee on the Federal Judiciary evaluates the professional qualifications of all nominees to the Supreme Court, circuit courts of appeals, district courts and some others, in order to encourage the selection of the best-qualified. It restricts its evaluation to issues around professional qualifications, without considering the nominee’s philosophy or ideology. In other words, it did not consider the politically sensitive matters in President Trump’s candidate’ views, enumerated above, which divide left and right.
For Supreme Court nominees, the ABA Standing Committee assembles reading groups of scholars and practitioners to review the nominee’s written work. For the current candidate, Brett Kavanaugh, two university law schools formed reading groups, made up of dozens of experts. A third reading group was made up of 10 nationally recognised lawyers with significant trial and appellate experience, who were knowledgeable in Supreme Court practice.
In addition, Standing Committee members solicited input from almost 500 people who were likely to have knowledge of Kavanaugh’s professional qualifications. This meant contacting 471 judges, lawyers, and professors for information regarding Kavanaugh’s integrity, professional competence and judicial temperament. They received more than 120 replies, and then conducted interviews with those respondents who had personal knowledge of the nominee through their professional or personal dealings with him.
After this rigorous process, the ABA was able to tell the Senate Judiciary Committee that it considered the nominee to be well qualified, and by unanimous decision, which is the highest rating it can give.
It would be interesting to consider what would happen if such a system were to be transplanted from the US to our own particular circumstances. What if the Law Society were to form a committee on the judiciary? Given our jurisdiction’s different constitution, and the different nature of our legal system, the courts play a different role. But there is a continuing feeling that not enough solicitors are being appointed to judicial positions, particularly senior judicial positions, and a Law Society committee could play a role in that.
For instance, what if such a Law Society committee were to follow the lead and basic procedures of the ABA Standing Committee on the Federal Judiciary and openly evaluate all solicitor candidates for higher judicial office and give its views to the Judicial Appointments Commission? (Personally, I would be happy if such a committee evaluated all candidates, whether from the Bar or Law Society, but I can see that that may raise difficulties, given our split professions.)
Such evaluations, when positive, could provide powerful support to solicitor candidates, and towards ensuring that more solicitors occupy such positions. The procedures for such an evaluation, by being geared towards solicitors and their particular experience for the judiciary, could change mind-sets about what kind of experience should count, and would show in clear terms that there are other ways of evaluating judicial candidates.