Why should legal academics not be judges?

Academic Mortar Board via https://pixabay.com/en/graduation-cap-hat-achievement-309661/ and Judicial Wig via https://en.wikipedia.org/wiki/Court_dress#/media/File:Legal_wigs_today.jpgWhy should legal academics not be eligible to apply for appointment to be bench, especially at appellate level? The question came up during a debate on the Courts Bill 2015 in the Seanad last Friday. The Bill is a short one, designed to increase the number of judges of the High Court by two. But amendments put down by Senator Seán Barrett at Committee Stage were designed to make legal academics eligible for appointment as judges of all courts on the same bases as practising barristers and solicitors (full disclosure, I drafted the text of the amendments for him). In reply, Minister of State at the Department of Justice and Equality, Aodhán Ó Ríordáin TD said:

The Government is conducting a wide-ranging review of all matters concerned with judicial appointments that will allow the necessary full assessment of all aspects of the issue. It is committed to bringing forward legislative reforms in this area and a judicial appointments Bill which is being prepared is the subject of a commitment in the agreed programme for Government. The subject of the amendments, that is, the eligibility of legal academics for judicial appointment, is one of a wide range of matters included within the scope of the review I have mentioned.

… Arising from the consultation process, draft legislative provisions to reform and update the judicial appointment procedures are being prepared by the Department, as such legislation is part of the agreed programme for Government. The Minister has indicated that reforms will be brought forward in 2016.

On this basis, Senator Barrett agreed to withdraw his amendments. I look forward to the proposals next year. Certainly, the Minister who began the Department’s consultation on judicial appointments, Alan Shatter, had twice (here and here) publicly considered the eligibility of legal academics for judicial appointment.

As part of their reply (pdf) to the Department’s consultation, the judiciary insisted that judicial appointments should be made on merit, and that

150. An essential element of merit to which particular weight should be given is that of practical experience in the conduct of litigation and advocacy. There is no substitute for this and no amount of formal academic training in judicial skills or experience in other branches of the law can equate with actual practical experience of the conduct of litigation in court.

This is the usual argument against the eligibility of academics for appointments as judges. It has many flaws. I’ll briefly mention three. First, this argument is strongest in the context of appointments to a busy single-judge court of original jurisdiction, such as the High Court; but, even there, lawyers (such as Mr Justice Max Barrett) whose careers were in transactions rather than litigation have served with distinction. Second, this argument loses force in the context of appointments to multi-judge courts of appellate jurisdiction, such as the Court of Appeal and the Supreme Court, where the various lawyers can bring different perspectives; one can bring sensitivity to the trial court procedures, where another can bring academic analysis to bear. And, third, in many other similar jurisdictions, not only academics have been appointed to the bench, but the world has not stopped spinning on its axis.

Academics serve with distinction in many courts all over the world. Koen Lenaerts, who has just been elected President of the Court of Justice of the European Union was Professor at the Katholieke Universiteit Leuven before he became a CJEU judge. Lord Justice Beatson, recently retired from the Court of Appeal of England and Wales, was Professor at the University of Cambridge before he became a judge; and Baroness Hale, the current Deputy President of the Supreme Court of the United Kingdom, was Professor of Law at the University of Manchester before she began her judicial career. In the US Supreme Court, three of its nine members (Justices Scalia, Breyer and Kagan) had distinguished academic careers before becoming judges. The most recent appointment to the Supreme Court of Canada, Mr Justice Russell Brown, was professor and Associate Dean of the Faculty of Law at the University of Alberta immediately prior to judicial appointment. James Crawford, the most recently elected judge of the International Court of Justice, was professor in Cambridge before his election. TO Elias, a predecessor of Crawford’s on the ICJ, who had been Attorney-General and Chief Justice of Nigeria and a judge, Vice-President and President of the ICJ, had been Professor and Dean of the Faculty of Law at the University of Lagos. Paul Finn was Head of the Department of Law in Australian National University before his appointment to the Federal Court of Australia. James Edelman, who is now a judge of the same court, was professor in Oxford before being appointed to the bench. At least three Irish judges – Seamus Henchy, Bryan MacMahon and Gerard Hogan, intertwined academic and practitioner careers before being appointed to the bench. If they had simply stayed in the academy, the Irish bench would have lost three great judges.

During the currency of the Department’s consultation, Dublin City University held a major conference on Judges, Politics and the Irish Constitution, at which Dr Laura Cahillane, Dr David Kenny, and Dr Jennifer Carroll MacNeill, gave papers on a panel on judicial appointments. Their papers will be published next year by Manchester University Press. However, not long after the conference, they were invited to give evidence to the joint Oireachtas Committee on Justice, Defence and Equality. The main point of discussion (here and here) was how to achieve greater diversity in judicial appointments, and the issue of academic eligibility came up, both in its own terms, and as a means to such diversity. Dr Cahillane said that “Another issue in regard to eligibility is the question of appointing academics”, and Dr Kenny said that the “proposal merits consideration”. In answer to a question from (legal academic, barrister, and) Senator Ivana Bacik, Dr Cahillane returned to the isssue:

Perhaps we should examine the possibility of widening the pool and, as Dr. Kenny mentioned, looking at appointing academics as judges as well. It is something that is done in other jurisdictions. The argument against it here is that academics would not have the requisite experience of litigation and court procedure, but that is something that can easily be provided. It might be more relevant for appointments to the Supreme Court where one does have more theoretical questions. However, that is one way which would open up the pool in terms of diversity of backgrounds, gender and so on.

It is a pity that Senator Barrett’s amendments did not prosper last week. Far from ships passing in the night, judges and academics are vessels in the same fleet, sailing together, working in collaboration to reach the same destination – the principled development of the law. There is no good reason why judges should not be drawn from the ranks of academics. It is well past time that Irish law allowed for this.