Labour has threatened to use the ‘nuclear option’ of quotas in order to deal with the fact that our judiciary are so unrepresented. Queue predictable outrage on twitter.
There are various arguments over this and I won’t re-hash them, you know them all. My declaration – as a white heterosexual male I would obviously lose out from a quota system, but as I’m not likely to be a judge in any event, this isn’t going to make much of a difference.
One argument, that is often treated as a knock out blow, is that “we want the best person for the job”. It’s a fair point and one I agree with, the problem is this – in any given round of appointments, how on earth do you decide who the best person for the job is? This is more so in cases ‘lower down’ the judiciary, with the Supreme Court, for example, different considerations may apply.
If we were talking about representation at the 100m Olympics running then it’s easy enough – we all agree what attributes we want in a runner, and we have an objective way of measuring it.
Not so with judging (or pupillage applications, or most jobs for that matter). We may just about be able to draw up a list of qualities that is desirable in a judge, but good luck getting any two lawyers to agree on exactly what should be on that list, and in what proportion when you are assessing it. Try it. Go to a court centre with ten judges and get advocates to rate them as to their ability and why. Get the JAC to do the same and see if there’s unanimity there.
I might think, for example, that compassion should count or 10% of the assessment and efficiency for 5%. You might agree both are important, but flip the scores. Neither of us are necessary right, but neither of us are wrong.
And that’s before you have to come up with some sort of scoring system to assess this.
We shouldn’t be blind to all the social science research that tells us just how bad we are at not discriminating, however good our intentions are. At least if I’m marking a maths paper, it’s fairly straightforward – it’s either wrong or it’s not. But in marking a judicial-seekers answer, scoring is as a 7, 8 or 9 out of 10 may all be justifiable. Proving unintentional bias in that scenario is well nigh impossible.
Don’t forget, judging is an art not a science. I’m old enough now to see people I’ve known for a while pop up among the lower ranks of the judiciary. One thing any lawyer will tell you is that being a good lawyer doesn’t always translate to being a good judge. Sometimes, maybe, but sometimes it’s surprising how your initial assumptions are wrong.
Especially in the current climate each judicial vacancy will have many (sometimes thousands) of good applicants – people who may well make excellent judges.
Whilst we like to think that our selection procedures are perfect, let’s be honest, they’re not. At least not in the sense that they can perfectly order any set of candidates in accordance with objectively agreed criteria. There’s an element of subjectivity, and how good you are on the day.
If there’s a thousand people applying for ten vacancies and narrowed down after tests and interviews to say twenty, then I’d be willing to bet all of those twenty are excellent candidates who would fill the post admirably.
The differences between them is less than the variation you’d get between different assessors, and how the candidates come across on the day. To that extent, when you’ve got that shortlist, you may as well toss a coin.
That may sound incredibly offensive to those that are successful and to those who give up their time to conduct the interviews, but go and read the research – it’s probably true.
And if you accept that, then the case against a quota system is much weaker. And given that everyone accepts that a representative judiciary is a good thing, bring it on?