Tuesday, May 19, 2009

Why I think politicians should not become judges

With Alberta’s Deputy Premier Ron Stevens leaving his position mid-term to become a judge, I made the comment on twitter that “Having a politician (Ron Stevens) become a judge calls into question, for me at least, the neutrality of the judiciary.” That garnered a short exchange between myself and Ken Chapman:
@KenChapman46: Why? They recuse themselves from any matter where a conflict may arise.
@grant: “Justice must be seen to be done.” The appearance (real or not) of a politically biased perspective diminishes trust.
@KenChapman46: With that logic a divorced judge should not hear divorce matters. They hear the evidence, weigh it and then apply the laws.

I strongly disagree with Ken’s equating of divorcees’ bias with politicians’ bias. The only bias we can assume from a divorcee is that they think divorce can be an appropriate choice. Heck, we probably can’t even assume that since they might have been divorced against their wishes. We can, however, assume that someone who spent years working, and getting paid, to promote a politically biased agenda might well carry those biases long after hanging up their official hat as a politician. One need only look at the examples of the political activities of the ‘retired’ politicians we hear about to see that continuation of bias in practice.

Regardless of whether such a person is able to “put on the hat of neutrality”, they carry such a strong image of holding a political bias that the perception of the continuation political bias will remain (even if that perception is wrong).

The separation of the government and the judiciary is very important as both a check & balance, but also for encouraging public trust in our system of government. The perception (again, whether right or not) of taking the political agenda into the judicial system compromises the public’s ability to trust the system.

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kenchapman said...

Good post Grant. Your fears are not unusual. Many folks have the same concerns. In fact it goes deeper and worse. In the "good old days" lawyers becam judges because they worked on political campaigns for successful candidates, usually in a bagman capacity. Nobody scruitinized the process or the qualifications of the appointees except the political process.
I can say as a lawyer that there was an individual independence assumed by those appointed to the bend even those terrible processes.

Now there is an independent committeed of legal professionals and lay people who vet and interview and check references for those candiddtes who personally put their names up considertation to serve on the bench. I have been a nominee for many such candidates for the bench and spent quite a bit of time in candid confidential conversations about various candidates.

I believe the committee provides the Minister of Justice a short list of three qualified candidates and the Minister can do tow things, pick one or reject them all and ask for another short list. That is the extent of the political discretion exercised these days. The process may have changed but it will be a variation on what I have said.

The quality of theses appointments are as vital to our democracy as are the quality of the people we elect to represent us in public office. Once again - good post Grant.

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