Senator Andrew Bartlett has an article on why Judges should not be elected . Andrew suggests that a judicature sensitive to re-election will perform for a majority, with the goal of re-election, at the expense of minority rights. Andrew also points out the problem of political donations polluting the judicial process. The idea of an elected judicial brings into tension the balance between specialist, representative and crowd wisdom.

Andrew argues against it from the point of political and legal equality;

Community standards can play a part in determining a reasonable interpretation of same parts of the law and in sentencing. Evolving standards and understanding are part and parcel of the evolution of the common law.

However, this sort of thing should only be at the margins, as it is crucial the law is applied as impartially and consistently as possible. It is crucial that marginalised people or those from minority groups are not treated more harshly or unfairly by a justice system, just because they are from outside the mainstream. Reality will always fall short of the ideal, but these remains ideals worth striving for.

Implicit in Andrew's in statement is that an elected judicial is more likely to follow majority public opinion which is no guarantee of preserving minority rights. A basic function of a representative republican system is that the minority respect the will of the majority while the majority respect the rights of the minority. Representative system cease to function in a liberal democratic sense when that is broken.

Australian High Court judges are appointed by nomination from the Executive Cabinet and after consultation with the State Attorney-Generals (since 1979). There is no qualification for a High Court judge, any joe-bloe can be one, but it is usually a political appointment. There is no confirmation process for High Court judges like there is in the US system, another area where Australia falls down on checks and balances between Executive and Legislature.

A good immediate improvement, that would be cheap and bolster the Senate's legislative independence, would be the creation of a confirmation process in the Senate for judicial appointments.

One of the purposes of an appointed judicature is to fulfil the specialist role. Tenure is intended to raise the judicature above day to day concerns of political retribution and public opinion so that they can make legal decisions without being influenced politically. The goal is a legal specialist that is impervious to political influence.

The Westminster system, as practiced by Australia, minimises the chances of that goal by having no confirmation process to determine the specialist qualifications of the judge. The lack of a confirmation process and a deliberative role from the states enables a politically influenced judicature to be nominated by the Executive Cabinet.

The High Court of Australia is to represent the state's interest, as such it makes sense to have the state's house - the Senate - conduct the confirmation process.

cam
Cam Riley: South Sea Republic. Freedom, liberty, equity and an Australian Republic.

Comments
  • Alan . # .
    legislative confirmation: The idea has its attractions but it needs a really strong caveat. US supreme court judges regularly get described as republican judges or democrat judges. That\'s obviously a bad situation, but it\'s not inherent to legislative confirmation. It\'s inherent to confirmation by a bare majority of senators.

    Executives always want friendly judges. If all they need is a simple majority, then they\'ll always nominate judges most likely to adopt the same view as they do.

    A number of US states require a super-majority of the Senate to confirm judges. If you adopt that rule, then you get an entirely different dynamic and the executive (who after all wants its candidates confirmed) will start looking for consensus judges rather than trying to get extremist nominees up.

    Personally I\'d go for what is called the Missouri Plan as practised in states like Missouri and Alaska. A judicial council sends a list to the executive. The executive chooses one appointee from the list. The appointee has to face election as the sole candidate, on a yes/no basis, after a certain time in office and at infrequent intervals thereafter.

    Alaska Judicial Article

    Wikipedia on Missouri Plan
  • cam . # .
    That is similar to the judicial process you: had in your constitution isn\'t it? I would be comfortable with that method.

    One of the points I was trying to make was that the judicial is a specialist position and the current form of appointment doesn\'t guarantee that the candidate is suitably qualified.

    The Judicial Council method would ensure that the judicial be a specialist position.

    cam
  • Alan . # .
    imaginary constitution: I\'m about a fortnight from completing the imaginary consecution. I roughly followed South Africa, who use a judicial council to nominate judges.

    Judicial appointment by the executive alone is getting increasingly rare. Britain\'s established a judicial appointments commission and Canada\'s gone for a weak form of legislative confirmation.
  • cam . # .
    Looked pretty concrete to me: when I read your draft. Are you going to publish it here when you finish? Please do.

    cam
  • Alan . # .
    rollout: I\'ll certainly post it here. The Charter of Rights has grown a little and the rules for bills slingshotting between the national assembly, the senate and the citizens assembly still give me a headache.
  • I think I have a solution to electing judges::
    1. Elect judges using approval voting (more correctly, local, state and federal benches using this method). Approval voting allows election to a board or multiple member offices by allowing electors to cast first past the post votes for as many candidates as they please. This explicitly depoliticises things. Out of say fifteen candidates, the seven who polled the most votes would be elected to the High Court of Australia.

    2. Allow the appointment of legal counsel to non-specialists.

    3. Codify common law regularly.

    4. The combined effect of above, the actual intelligence of the electorate (most people will still vote in lawyers or intelligent non-lawyers such as senior cops with law or criminology degrees), judicial peer pressure and the low probability of a complete dullard being elected allow for democracy, community values and the protection of minority rights.

    Otherwise, judicial officers should be appointed on a renewable long term tenure (seven year terms, renewable once).