A recent paper by the President of the American Bar Association, entitled ‘Op-Ed: Judicial Nominations: Time to Turn Down the Heat’, brings into sharp focus the challenges of attracting the best people to judicial office.
As two of Australia’s preeminent High Court justices enter retirement, the attractiveness of a judicial post is something that many eminent lawyers must have been considering in recent months.
But according to the American Bar President, beyond the intricacies of the judicial appointment process, more weight must be given to the practical considerations of providing incentives such as job satisfaction, work-life balance and comparative remuneration for practitioners at the top of their professional game.
Thomas Wells Junior, President of the American Bar Association has penned an op-ed which highlights the gap between the prestige of judicial nomination, and the day-to-day reality of the arduous process of selection.
“Imagine being recruited for a job that pays well below others in your field, requires an interview process that is likely to lead to public attacks on your intelligence and character, and offers no assurance when, or if, you will be hired. Even in today’s tight market that sounds like a hard sell.”
Despite the constitutional differences between the US and Australian judicial appointment process, the lengthy consultation process and intense public scrutiny surrounding judicial appointments has clear parallels with the Australian system of appointments. The impending retirement of Chief Justice Murray Gleeson resulted in months of speculation about potential candidates for the post of Chief Justice, which went to outsider Justice Peter French.
“It’s not fair to ask our best and brightest to be nominated, and then leave them in limbo for endless stretches of time. And it’s not reasonable to try to run our courts without enough judges. To remedy this growing problem, judges who plan to step down be sure to announce their plans well in advance so their replacement can be readied, and the president and Senate should act promptly to fill vacancies,” Wells said.
Other aspects of the judicial selection are also singled out for critique by the Bar Association President, particularly the shortage of judicial candidates. He criticized the pay scales of judicial office, a debate that has also been ongoing in Australia, particularly in regard to superannuation entitlements for same-sex partners of judicial officers.
“Finally, while many people are struggling financially today, few of us have jobs where we go for years without even the most modest pay raise. But judges do. The women and men who agree to sit on the bench are truly doing it to serve our justice system, and not to get rich, but their compensation lags so far behind that of lawyers in private practice it’s no wonder that many of them are forced to leave. In fact, in the past 15 years, judges have lost more than 12 percent of the purchasing power of their salaries.”