What qualities should judges have?
Judges are the judicial equivalent of US Navy Seals. They are a select few. Their training is severe. Their work is unremitting. They have but three abiding qualities: to defend the Federal Constitution, to render justice; and to live with quiet honour. Should we not, as a nation, aspire for those qualities in our judges?
All good judges demonstrate certain qualities. What are they?
Starting Point – the Federal Constitution, Article 123
The Federal Constitution requires two things from an aspiring judge: the candidate must be a citizen. And 10 years before his (or her) appointment, the candidate must have been (1) an advocate and solicitor, or (2) a member of the Judicial and Legal Service of the Federation, or (3) a member of the Legal Service of any State – or sometimes the one and sometimes the other.
Other than those requirements, the Federal Constitution is strangely silent.
JACA Selection Criteria
In 2009 the Judicial Appointments Commission Act (‘JACA’) established the Judicial Appointments Commission [‘JAC’].
The JAC’s work was to select candidates to be appointed as judges of the superior courts. It was also required ‘to uphold the continued independence of the judiciary.’
Section 23 of the Act sets out the selection criteria of candidates. This is what it says:-
(1) A candidate is qualified for selection if he fulfils the requirement under Article 123 of the Federal Constitution.
(2) The Commission in selecting candidates shall take into account … , the following criteria:
(a) integrity, competency and experience;
(b) objective, impartial, fair and good moral character;
(c) decisiveness, ability to make timely judgments and good legal writing skills;
(d) industriousness and ability to manage cases well; and
(e) physical and mental health.
(3) [A] serving judge must not be appointed if he has three or more pending … unwritten grounds of judgments that are overdue by 60 days;
(4) The Commission [needs] to encourage diversity in the range of legal expertise and knowledge in the judiciary.
What qualities are missing?
Crucial requirements are missing from this list of criteria.
If these criteria are studied, it is nowhere stated there that the candidate is one who is certain to defend the Federal Constitution. Yet that is the first thing a person swears to when he or she becomes a judge. Isn’t that amazing?
First and Last, a Defender of the Constitution
Therefore before candidates are selected for appellate positions, they have to satisfy the Selection Committee of various innate abilities: –
(1). That they would bear true faith and allegiance to the nation.
(2). That they would preserve, protect and defend Federal Constitution.
(3). That inducement, racial, religious or political considerations would not move them.
What additional qualities are needed?
There are many. Some are here summarised: –
(1). Unquestioned loyalty to the Constitution: that requires no explanation!
(2). Selfless devotion to the law: this shows tenacity, and scholastic discipline.
(3). A well-trained mind – this is Intelligence in action.
(4). Recognised ability; the candidate must be able to show evidence of his or her previous work – a consistently high standard of work. These are usually (but not necessarily) demonstrated by scholastic papers written by candidates, or arguments taken by counsel in reported cases.
(5). Mature experience is more than mere seniority. It is seniority, and knowledge tempered by experience. The candidate must not only possess stamina but one who has lasted in the field.
(6). Expertise: Only those who are recognised expert their ther respective fields should be considered (this is one of the requirements of the British test).
(7). Deep understanding of the Federal Constitution: How is a judge to defend the Constitution if he or she has poor knowledge of it?
(8). Practical Knowledge on a wide range of legal subjects: A judge must be able to grasp, wrestle, reason, and explain the difficult concepts of law. He must have a deep and working knowledge of the law across a broad spectrum of differing areas of law: criminal procedure, commercial law, family law, civil and appellate procedure.
(9). Expositive: A judge must be able to navigate untrodden legal ground. He must be able to explain grey areas. He should reason lucidly, instead of parroting counsel’s arguments – as some judges do.
(10). Research ability: The one essential quality upon which most judges fail is a high degree of skill in legal research.
(11). Unremitting industry: Judges are uncommonly industrious. Lazy judges are bad judges.
(12). Unmoved: A judge should be unmoved by pressure or pleasure, whether exerted by those in power, or their loved ones. Legal “Courage” is “the willingness to do what the law requires the judge to do even though the course the judge must follow is not the popular one: [www.apursuitofjustice.com]
(13). Impartiality is more than being fair to all sides. It is the skill of a judge ‘recognising his own prejudices so that he is not swayed by them. A person may sit as a judge over a case which has life-changing implications for a litigant. The judge may find a litigant’s character personally distasteful. Unless a judge has a sense of self-awareness in being able to recognise his own prejudices, his decision would reflect his own personal bias –instead of doing justice: [www.Chron.com]
(14). Independence is the ability to remain intellectually aloof; and not being influenced by anyone.
(15). Integrity refers to a person of upright character. A judge with integrity sets aside personal prejudices, personalities and partisan political influences: [C. Dale McClain, www.pennlive.com]
(16). Speed: A judge must be able hand down carefully considered judgements swiftly.
(17). Intrepid refers to Judicial fearlessness. Judges should not be cowed by authority. Judges need to make tough decisions in such a way that their authority and fairness are respected – even by those who may be adversely affected by their rulings: [www.Chron.com]
(18). Incorruptible – a judge should not fall prey to bribery or any kind of subtle inducement.
(19). Financial responsibility – is the ability to resist pressures that might threaten judicial independence and impartiality: [www.Chron.com]
(20). Interpersonal skill: Judges need strong interpersonal skills to oversee complex cases; and deal with cases involving adversarial lawyers. Things get complicated when there are powerful emotions at play among the litigants. Judges need to control and defuse a courtroom, especially when the court’s atmosphere becomes intense: [www.Chron.com]
(21). Judicial Temperament: An angry judge cannot serve justice. Judges must be patient, open-minded, courteous, tactful, firm, understanding and importantly, demonstrate humility. They should be able to deal calmly with litigants and lawyers. A good judge is even-tempered but firm; open-minded but able to reach a decision; confident but not egotistic: [C. Dale McClain, supra]
A word from the former Chief Justice of South Africa
As a final quality there is the 1994 statement by the Chief Justice of South Africa, MM Corbett. He said: –
‘If I were to attempt to sum up in half-a-dozen words the qualities which ideally a judge should have, I would say knowledge, experience, judgement, independence, character, and industry.’
He then said: –
‘To these qualities I would add only … a breadth of education, so that he has sufficient reading to make what Francis Bacon called ‘a full man.’ These characteristics are not, of course, possessed in equal degree nor are they possessed by all members of the Bench but they are, and should be, the ideal.’
This is why judges are supermen and super women.
They are difficult to find.