Monday, January 10, 2005

Against judicial recalls

In an opinion-piece in the Dominion-Post on Friday, Stephen Franks suggested allowing voters to vote out judges. It sounds like a good idea, until you realise what it actually means: the demise of an impartial and independent judiciary.

Perhaps a history lesson is in order. Once upon a time, judges served at the pleasure of the monarch. Their judgements therefore had to conform to monarchical prejudice, or else they would find themselves removed from office (as Sir Edward Coke was removed by James I). This was understandably bad for justice, which is why we have lifetime appointments with Parliament able to remove judges only for "misbehaviour" or incapacity.

Introducing judical recalls will simply replicate this seventeenth century problem, only with the people in the place of the king. Judges will ensure that their decisions conform to popular prejudice - regardless of what the law says - in order to avoid being voted out of office. This will undermine the core purpose of the judiciary - providing impartial justice.

Our present system is by no means perfect - it makes it very difficult to hold a judge who consistently ignores precedent to account - but it is far better than the alternative. Introducing judicial recalls will result in partial and compromised decisions. if we care about justice, we should reject them.


If you don't mind a comment from an American, here, and there, one of the most important burdens we place on judges is vindicating the rights of unpopular individuals as against the will of the majority. Let the majority overrule decisions of this type, and the rights of the individual are lost.

(In many US states, the judiciary is elected. I am not aware of any empirical studies on the subject -- although they surely exist -- but I would be willing to bet that decisions of the Texas Court of Criminal Appeals are much less friendly to the rights of individuals than are those of appointed judges.)

Posted by Anonymous : 1/10/2005 10:06:00 AM

Franks' comments are also somewhat ironical given his main claim against the Supreme Court was that it would undermine the impartiality of our Judiciary.

Posted by Lewis Holden : 1/15/2005 12:41:00 PM