News: Thoughts on new judges for the High Court

This morning, George Williams has a piece in the Sydney Morning Herald, noting that Crennan J and Hayne J will soon retire, and that Crennan J intends to step down from the Court on 2 February 2015. It is natural to predict who will replace the outgoing judges, although as Williams notes:

Every High Court appointment leads pundits to forecast who will be selected. Doing so can be fraught. The most worthy candidates often miss the cut, while others prove a surprise. As I have said elsewhere, predicting the next High Court justice is like trying to pick the winner of the Melbourne Cup, but without knowing who is in the field.

Williams notes that diversity, gender, ethnicity and geography are often taken into account in making new appointments. There has to be a balance between the judges from different States of Australia, and as the two outgoing judges are Victorian, it seems that at least one of the replacements is likely to be Victorian. Consequently Williams concludes:

If you were wanting to place a bet on Australia’s next High Court judge, the smart money would be on a serving judge from Victoria, aged 60 or under, with impeccable legal credentials. The person would also be favourably regarded in conservative circles and would not have a background of supporting the states. Beyond that, it’s anyone’s guess.

In terms of diversity, another interesting thing to consider is which university each of the judges attended. This recent article notes that the judges on the US Supreme Court all went to ivy league universities: four to Harvard, three to Yale and one to Columbia. The author observes as follows:

It [the Supreme Court bench] includes three women, an African American, the first Hispanic, two Italian Americans, six Catholics, and three Jews. On the federal bench, President Obama has appointed more women, minorities, and openly gay judges than any president in history.

But while we have gained diversity of background, we haven’t gained diversity of experience. A study released in February revealed that 71 percent of Obama’s nominees had practiced primarily for corporate or business clients.

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships.

This made me wonder about which universities our present High Court judges attended:

  • French CJ: University of Western Australia (BSc/LLB)
  • Hayne J: University of Melbourne (LLB) and Oxford (BCL)
  • Crennan J: University of Melbourne (BA) and University of Sydney (LLB)
  • Kiefel J: Cambridge University (LLM)
  • Bell J: Sydney University (LLB)
  • Gageler J: Australian National University (BEcon/LLB) and Harvard (LLM)
  • Keane J: University of Queensland (BA/LLB) and Oxford (BCL)

I was pleased to see that the Australian High Court judges have attended a more diverse range of universities than the US Supreme Court judges. That being said, all but one of the Australian universities are “sandstone” universities, and all of the universities are part of the G08 (‘Group of Eight‘). Similarly, the English and American universities at which some of the judges attended are preeminent.

Kiefel J’s background is more interesting. She left school at fifteen and commenced work as a secretary, but then undertook the Barristers Admission Board Course through Sydney University and became a lawyer in that way. (McHugh J is another former High Court Judge who became a lawyer by completing the Barristers Admission Board Course.)

The prevalence of attendance at sandstone universities by Australian High Court judges, links to another article I read this morning, in which Ross Gittins questioned the way in which universities prioritise status and ranking over other matters. It may be that for judicial appointments, university status matters. However, it could also be noted that when the High Court judges were at university, there was a less diverse range of universities in existence. Also, some present and past judges undertook practical training rather than an LLB and this was no impediment in any way to their appointment (thankfully).

I’m glad we have a more diverse judiciary in Australia. I hope that the trend continues with the new appointments to the bench.

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

4 thoughts on “News: Thoughts on new judges for the High Court

  1. Part of the diversity of universities attended in Australia is perhaps the parochialism of our university attendance — ie, we tend to attend the best Law School in our State; but Americans try to attend the best in the country (putting to one side the question of how that is judged). So when picking the “best” people as judges in the US, they have tended to go to one of the Ivy League places. In contrast, in Australia when you add parochial university choice with geographical considerations in appointments, you get a more diverse university outcome. No doubt not a full explanation, but at least a partial one.

  2. Yes, Anon, you are right. I went to high school in the UK where they tend to go to the most prestigious university in England if they can. They were astounded that I chose to go to university in my home city, but then the distances are so large here.

    It is interesting to think about how these things are judged too. Is the most prestigious always the best? I don’t think it is, necessarily. But names hold their own power. However, I respect my Law School not because of reputation in that sense, but because of my colleagues. If I didn’t have them, I’d feel differently.

  3. Matan Goldblatt has just alerted me to the following:

    Thanks for the interesting post about possible criteria for choosing the next HCA justices. You might be interested in a recent talk of three SCOTUS justices who discussed some of your considerations. Thomas, Alito and Sotomayor JJ were at Yale, their alma mater, to receive an award and spoke about their careers and the Court. They discuss former law professors as judges, or are there too many appeal judges (~1:27:00), which law schools justices graduated and which states they come from (~1:31:30). Sotomayor J, at ~1:32:40, spoke eloquently about why varied life experiences are important, and what variety she thinks is needed. An interesting point here is Thomas J talked about the need to have Justices from other law schools, and he is known to purposely hire law clerks from not only Ivy league law schools.
    Additionally, in the UK, Lady hale speaks about diversity in the judiciary—why I it needed, why there’s not enough of it, and how to achieve it—quite frequently (eg 1, 2, 3). Lord Neuberger and Lord Sumption also discussed that topic. This is a “hot” topic there, as a recent report for the Shadow Secretary of State for Justice indicates.

    • My own response to Matan was this:

      I’m not surprised that the judges want more diversity. I think it says more about the conservatism of those who appoint than it says about the judges themselves.

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