Blind Justice: The principle of judicial impartiality is crucial to the survival of an appointed rather than an elected judiciary. The slightest suggestion of class, racial or gender bias in judges' sentencing and the public's tolerance of an appointed judiciary will be severely tested.
JUDGES CANNOT AFFORD to get it wrong. Their speech is privileged and their judgements have the power to deprive citizens of everything they hold dear: reputation, wealth, and liberty. They also possess the power to inflict dreadful harm on persons and communities entirely innocent of any wrong-doing. Whether it be in passing sentence, or granting bail, judges have to get it right.
There are two ways of maximising the chances that judges’ decisions will be right more often that they are wrong. The first is to select them purely on the basis of their professionalism. To fill the judicial bench exclusively from among the best, brightest and wisest our legal profession has to offer.
This is our way.
The other way of limiting bad judicial decisions is to hold judges accountable for their mistakes. To require them to submit the record to their own judgements to the judgement of their fellow citizens at regular, local, elections.
This is the American way.
Judicial election, like any political institution, has its virtues and its defects. A judge required to submit his decisions to the adjudication of the ballot box must feel under enormous pressure to accurately reflect the ideals – and prejudices – of his local community.
And if those ideals and prejudices are profoundly and aggressively racist? The court records of the parishes and counties of America’s Deep South contain countless examples of black citizens receiving the most outrageous injustice from the hands of elected judges. These were educated men, qualified lawyers, who must have known that their judgements traduced every legal principle they had sworn to uphold. But, they also knew that if they attempted to uphold the rights of black defendants, then their jobs (and quite possibly their lives) would be forfeit.
The other problem with electing judges lies in the potential of local and national power elites to exert undue influence over the electoral process. In today’s America even judicial elections can turn extremely nasty. A forthright and honest judge whose decisions have disadvantaged or embarrassed a local business owner, or (God forbid!) a major US corporation, may find herself up against a well-funded challenger at the next election. Allegations of corruption may appear in the local press. The county’s District Attorney (also elected) may seize the opportunity to improve his own chances of re-election by launching a full-scale investigation.
On the other hand, the parents of Christie Marceau – the young Auckland woman allegedly murdered by the man a judge, ignoring the Police’s strong objections, released on bail – might argue that if that judge’s high social status and generous remuneration had depended on the local community retaining confidence in her judicial decisions, then she might have thought twice about allowing Christie’s alleged assailant to continue living among them.
This is, of course, what jurists fear most about the institution of judicial election. That in deference to the vagaries of public opinion, judges will be willing to set aside time-honoured legal protections – like the accused’s right to the presumption of innocence. They fear that a mere accusation, untested in a court of law, may see an innocent person incarcerated for months – maybe years. If the judiciary is to deliver anything remotely approaching impartial justice, it must be independent. Judges must not be placed in the position of having to look over their shoulders, tune into talk-back radio, or commission an opinion poll before rendering their judgements.
Most New Zealanders would, I think, agree that situations such as this should be avoided.
But, they would also, I believe, agree that the price our judges must pay for their independence is the strictest impartiality.
Under no circumstances should any member of the judiciary indicate by word or gesture, and especially not by the severity (or lenience) of their sentences, that some members of the community can expect to be treated better, or worse, than some other members. The old expression “without fear or favour” must be made manifest in every judicial decision.
It is hard to reconcile that principle with the judicial commentary of Judge Raoul Neave, in sentencing last week the wealthy merchant banker, Guy Hallwright, convicted of running over and breaking the legs of Song-jin Kim.
Sir Thomas Noon Talfound wrote:
Fill the seats of justice
With good men, not so absolute in goodness
As to forget what human frailty is.
“Nor,” he might have added, “to overlook their own.”
This essay was originally published in The Press of Tuesday, 4 September 2012.