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Lecture 3

Lecture 3 - judicial selection

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University of Guelph
Political Science
POLS 3130
Dennis Baker

Judicial Recruitment, Selection and Independence • Method of selection must be linked to purpose of judges -professionalism -representation -independence, not as connected to the government -adjudicator or policy maker, what approach should judges have • How do we select judges / how should we select judges -appointed by order of council, AG and PM -“legal excellence” best individuals, most experience, are their rulings good with supporting reasons -representation vs ideology vs “legal excellence/merit” Politics or Professionalism • The “political influences” on judicial selection are often seen as inappropriate -usually taking politics to mean partisan (problem of patronage), Canada looks at it as corruption -but Warren selection for CJ of USSC is a notable counter example (miranda, desegregation) -it may not be as harmful to judicial independence as we think • Non-partisan political influences -regional representation -group (gender, ethnicity) representation -ideology • Most selection happens behind closed doors, deal with the outcome Gender on the Bench • In 2011, 68% men and 32% women judges appointed by the federal government • Proportionally female judges are underrepresented in Canada • More women graduate from law school but they opt out because of family obligations, lack of advancements in partnership • Women were a new class of workers who did not always fight for senior partner positions, becoming ideal workers that help create the pyramid present within law firms • Lower number of female senior partners which is reflected in the unbalance present today A Rough Comparative Continuum • France – civil system – “professional” model -civil servants like any other -separate schools for judges, not law school, good idea since the skill set is different for lawyers and judges • Britain – common law – “adjucatory” model -political selection of PM and Lord Chancellor -selection from pool of experienced barristers • US – “representative” model -federal judges (presidential nomination, senate confirmation) -state judges (generally committee system with confirmation vote), electoral pressures Section 92 Selection • Until the 1990s in most provinces judges were appointed by AG (minister of justice) or Premier • Patronage played a large role in the appointment process • Allegations of patronage continue (L’Affaire Bellemare) • Provinces now use judicial appointment committees to help in the process -Committees usually composed of members nominated by chief judges in the province, members nominated by law societies, lay members nominated by the government • Rules vary from province to province about what kinds of rankings are given and the degree to which governments are bound by the rankings -the list can be rejected and the jaac must create a new one (women: in the span of 6 years jumped to 22%) • Committees in different provinces look at a variety of criteria including -professional experience (most provinces have a min number of years at the bar, such as 5 or 10 years) -personal traits (ethics, work ethic) -community awareness -reasons for wanting to be a judge -demographics • “the Judiciary of the Ontario Court of Justice should be reasonably representative of the population it serves. This requires overcoming the under representation in the judicial complement of women, visible, cultural and racial minorities” *know there is variation between provinces Section 96 Selection: Evolution • Up to mid 1970s: direct appointment by minister of justice • Mid 1970s-1988 -special advisor for judicial affairs would collect information on potential candidates to give to minister -Canadian bar association offered to evaluate potential candidates • New system an improvement but still has deficiencies -special advisor on judicial affairs closely tied to minister of justice worked on a contract basis -minister of justice did not have to listen to special advisor - justice minister experienced pressure in cabinet, overrode advisor’s recommendations -advisor did not have to consult with provinces -minister of justice did not have to give names to the Canadian bar association’s “Committee on the Judiciary” – occasionally bypassed -CBA committee did not review promotions (from section 92) only new appointments • Deficiencies highlighted by the Saskatchewan judges affair -trudeau was making patronage appointments -cut off appointments so there would be less judges to choose -they used their administrative power • Russell and Ziegel study Mulroney Appointments 1984-1988 -228 appointments made, some were promotions from section 92 or from section 96 trial level to appeal level -39 (170%) to courts of appeal -116 (51%) to section 96 level, court of queen’s bench, supreme court trial division -6 to federal court (3 trial, 3 appeal) -3 to the supreme court • Who were these people -82.5% men, 17.5% women -45% of these appointees had been 20-30 years experience, 60% came from private law firms • What were their political affiliations? -major conservative supporters, 24.1% -minor conservative affiliation, 23.2% -no affiliation, 45.% -major opposition supporter, 5.3% -minor opposition affiliation, 1.8% • 1988 process changed, though did not go as far as CBA and CALT recommendations • Special advisor to justice minister changed to c
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