Tuesday, August 11, 2009

Where High Court Judges Go and Come From

Yesterday's Indian Express had this editorial questioning why High Court judges should be appointed to the same courts where they once litigated. It asks if top Indian administrative officers are rarely appointed to their home districts, why should judges be any different?

This is an important issue to consider, but I think even more pressing is questioning the practice of appointing High Court judges almost exclusively from the litigating bar (besides those judges that are promoted from the district courts). Many have noted that students from top law schools no longer join the litigating bar upon graduation, but instead go into corporate practice, civil society, government, the academy, etc. No matter where they go, it seems clear that despite having some very good lawyers, the litigating bar is no longer the epicentre of legal talent in the country.

Countries deal with the selection of appellate judges in different ways around the world. In Germany, for example, young lawyers join the judicial service almost immediately upon graduation and are then promoted through the ranks. In the U.S., judges are selected from lower courts and the litigating bar, but also frequently from government, civil society, and the academy. India seems to prize litigating experience above all else when selecting judges. This is in part because of India's system of old judges selecting new judges. When the senior judges of a high court consider a new prospective judge they are likely biased towards members of the litigating bar in their court. They also probably feel most confident in selecting these lawyers because they appear before them on a regular basis in court. Indeed, if a broader variety of lawyers were to be considered the system of identifying and selecting candidates would also have to be widened.

I think this proposal (and I recognize it is not a new one) should be considered for two reasons. First, it is often complained it is getting more difficult to find qualified lawyers to join the bench. This is in part because for many the costs of becoming a judge now seem to outweigh the benefits, but also because the pool from which judges are selected likely now represents a dwindling overall share of lawyers qualified for the job. Broadening the selection criteria would help alleviate this supply problem. Second, lawyers selected through a more expansive method would have a broader range of professional experiences to draw upon when making decisions. True, some of them might have to be caught up on the latest court room practice due to their paucity of litigation experience. However, if they are qualified this should not take long and the new perspective they bring to the law (and, indeed, court room practice) should be well worth this cost.

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