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Should litigants be able to pick the judge who hears their case?

That's the admittedly radical proposal being offered on the Comment Page of The Globe by Ontario lawyer and columnist Karen Selick in her article Let litigants pick the judge

"The Conservative government garnered cautious approval in February when it changed the procedure for selecting Supreme Court of Canada judges by allowing parliamentarians to interview candidate Marshall Rothstein," she writes.

"But its proposal last week to change the method of selecting judges for the lower courts has not been so well received."

"Fears that police representatives on committees vetting judicial applicants will lead to a court stacked with tough-on-crime judges are not entirely unfounded," Ms. Selick argues.

"The obvious reply from conservatives, however, is that by not having law-enforcement personnel on the committees, the judiciary has been stacked with individuals who are more likely to be "soft on crime" or opposed to conservative policies."

"No matter whom the committees include or exclude, someone can always allege bias."

That's where her proposed solution comes in.

Ms. Selick kindly agreed to take questions about her article on Wednesday afternoon.

Ms. Selick is a lawyer in Belleville, Ont. She is also a commentator on legal issues. Her writing has been published in many national and regional newspapers and magazines.

Currently, she debates political and moral issues with social conservative Michael Coren bi-weekly in Western Standard magazine. Ms. Selick's political philosophy is libertarianism. She advocates minimal government in both economic and social issues.

Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity. HTML is not allowed. We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.

Jim Sheppard, Executive Editor, globeandmail.com: Welcome, Ms. Selick, and thank you for joining us today to take questions from the readers of globeandmail.com on the fascinating article you wrote today in The Globe. Personally, I can see how your proposal to allow the litigants and their lawyers to pick judges from a panel could work well in civil cases. But I'm a little less clear on how it would work on the criminal side. Let me start by asking you to elaborate on that point. As well, what would happen if the two sides could not agree on any one judge from the panel?

Karen Selick: Criminal cases wouldn't be much different from civil. The lawyer acting for the Crown and the lawyer acting for the accused would both have to agree on a judge that both considered impartial.

People in adversarial situations routinely co-operate to choose mediators, arbitrators, valuators, appraisers, etc. This is not uncommon at all.

Here's one way that it might work. Suppose the panel of available judges contained 15 names. Each lawyer could submit a "short list" of perhaps 5 names that would be most acceptable to him or her. If there were any overlap among the short lists, the problem would be pretty well resolved right then. It would just be a matter of narrowing down the choices to one.

I think it would be rare to find a case where there was no candidate acceptable to both sides. As a litigator myself, I find that my local colleagues and I have a high degree of consensus about which of our local judges are fair, unbiased, well-prepared, and so on. We also agree pretty well on which judges should be avoided because they are unpredictable, indecisive or ineffectual in some other way.

Furthermore, my proposal would go a long way toward weeding out problem judges. Biased judges wouldn't get many cases and would have to go back to practicing law in order to earn a living. Only those with a well-founded reputation for impartiality (or those who at least manage to keep their biases out of their judgments) would have successful careers as judges.

In the odd case where the parties couldn't agree on who the judge was to be, it might be necessary for the court administrator to assign someone—but that's certainly no worse than today's situation where every case has a judge assigned without any possibility of letting the parties select.

Eric Williams, Edmonton: Interesting idea Karen, but not without its flaws.
1. There could be circumstances where a judge was attractive to both the litigants, but at the expense of unrepresented third parties. For example, think of a hypothetical case where two private litigants are competing for a single resource. Also say that one valid outcome of the case is to rule that the resource is common property of the public. How would you ensure the judge took the public interest into account? (There's obviously no guarantee of this in the current system, but judges at least don't have any financial incentive to do otherwise.)
2. If judges couldn't be guaranteed full-time work, why would anyone ever give up a $300K/year partnership to be a judge? Many experienced lawyers are already taking a pay cut to be judges. Would the job become less attractive if there were, in effect, no guaranteed security of tenure? And if judges are "part time," that implies they would be continuing to work as lawyers on the side -- doesn't this raise some serious issues about judicial independence?
3. If you extend this scheme to appellate courts and even to the SCC, how would you ensure any sort of consistency in judgments? With relatively consistent 9-member panels from year to year, you at least don't see judges overruling themselves willy-nilly. If the panel could change from case to case, how would you prevent Canadian jurisprudence from becoming a convoluted mess?

Karen Selick: Hello, Eric. You raise some interesting points. I don't see why a judge selected by the parties for his impartiality would fail to take the public interest into account. Why would a person want to ruin his reputation by pandering only to private parties? You seem to suggest that it would be in the judge's financial interest to curry favour with the lawyers so that he will be hired again, but don't forget, lawyers don't always represent the same point of view in every case. Sometimes those same lawyers who saw the judge overlook the public interest might be hired on a case where they represent the public interest. They would then be disinclined to accept that judge if they knew he was biased against "the public."

You ask why anyone would give up $300K a year if there were no security of tenure. For starters, lawyers wouldn't necessarily have to give up their law practices. Here in Ontario, lawyers act as Small Claims Court judges while they are still carrying on private practice. But don't overlook the possibility that someone who was really good at being a judge might actually earn more than he earned as a lawyer in private practice.

Maybe lawyers in Edmonton earn a heck of a lot more than lawyers in Belleville, Ontario. Right now, the Ontario Court of Justice in Belleville is seeking replacements for two judges. The identities of the top few candidates is common knowledge among the local bar. Believe me, it's extremely unlikely that any of those individuals will be taking a pay cut to accept these judicial appointments. When you throw in the paid vacation, the retirement pension, and the freedom from accounts receivable, a judicial appointment in rural Ontario is very often a significant step up in earnings.

In regards to your third point, I don't see any reason why there would be any more inconsistency in judgments than there already is. You are assuming that under my proposed system, judges will be chosen because of their biases. The way I see it, they will be chosen because they lack biases. Judges would still be required to follow precedents just as they do now. Anyone who went off on frolics of his or her own would be considered a loose cannon by lawyers and wouldn't get much business. Nobody wants unpredictability.

As for Canadian jurisprudence becoming a convoluted mess — have you looked at any family law cases lately, including those from the Supreme Court of Canada? Sorry to tell you, but it already is a convoluted mess.

M.S.: Ms. Selick: After reading your proposal, my immediate question was how you would square this structure with the finding of the Provincial Judges Reference (i.e. that judges must have financial security to preserve judicial independence)? It seems that in light of this decision, this piecemeal pay-scheme for judges would be found unconstitutional -- especially since an attempt to appear unbiased may lead to over-compensation. For example, a judge who found for wives more often may well have done so on the merits of the cases that coincidentally fell before her -- would she have to find contrary to merits, just so she wouldn't appear to be stacking the deck in favour of one party? Or, at the very least, would this not be the perception?

Karen Selick: I've never actually agreed with the maxim about financial security being necessary for judicial independence. Perhaps the reasoning is that impoverished judges might be more inclined to accept bribes. But people of all income levels commit crimes to get more money, not just poor people. Who says $231,000 is the level at which judges won't be tempted? Why not $200,000? That's well above the average family income in Canada.

Under my proposed system, impartiality and judicial independence would be a prerequisite to financial security for judges. Nobody would get selected by opposing parties unless his or her reputation for impartiality were unblemished. Nobody would earn a decent income from being a judge unless he or she were impartial.

As for over-compensating, I doubt whether lawyers would engage in statistical score-keeping about how often a judge favoured wives versus husbands. We generally have a pretty good sense of biases from the things judges say and the reasonableness of their decisions. We know when cases have been decided according to their merits, or when extraneous factors seem to have crept in. For my clients, I would want a judge who decided cases on their merits, not someone who was obviously keeping score.

Rob Misek, Whitby, Ont.: We all appreciate your recognition that the justice system is broken. Unfortunately your suggestion doesn't correct the problem, it embraces it. Justice isn't served when people are biased. A judge's job is to understand the meaning of the laws, discern the truth and apply a consistent verdict to the guilty. No more, no less. You are not supposed to pander to biased folk that exploit loopholes in the written text. This doesn't serve justice. It only serves to line the pockets of those involved in the process. Understanding the meaning and intent of laws isn't rocket science. I'm sure the citizens via the government would be happy to spell it out simply for you if required. Why not think a little more out of the box and suggest a change that serves justice?

Karen Selick: Hi, Rob. I think you've misunderstood my proposal. Judges would not be able to wear their biases on their shoulders and seek out customers who wanted them because they were biased. Opposing litigants would have to agree on who the judge would be. This means that only those who demonstrated an absence of bias would ever be selected.

Marianne Moershel, Madoc, Ont.: Your system assumes that opposing lawyers would be able to agree on a judge. I suggest that is unrealistic and impractical. How would it work where one of the parties or lawyers is seeking to delay the proceedings and/or increase the costs?

Karen Selick: Good question, Marianne. There could be rules setting out time limits for parties to submit their selections. If one side delayed, the other would get its choice by default. That would certainly discourage people from playing games.

Jonathan from Toronto writes: I have two concerns with this proposal that maybe you can address:
1) This could create a situation where certain judges are popular and others are not. Given the current strain on judicial resources, how do you practically expect your proposal to work where everyone may want a trial with a judge who is already very busy? Would criminal trials get priority over civil trials? Which litigants would get to choose the judge?
2) In my view, this would create the public impression that judges do not judge equally. It seems to me that our system of justice assumes and requires that judges be impartial and not pro-Crown or pro-accused. This proposal would suggest that some judges are not impartial and that one could select a judge that suits their interests.

Karen Selick: Hello, Jonathan. What I expect would happen is that the judges who were unpopular would go back to practicing law -- as indeed they should if their colleagues believe they are not good at being judges. Other lawyers, perceiving that there is a shortage of judges, would take the training and sit for the exam, so that they could get on the panel.

Don't forget, there are currently many more lawyers who apply to be judges than the number who are appointed. These individuals would now have the opportunity to put their names forward as part of the panel.

There need not be any limit on the number of names on the panel. Anyone who passed the objective certification standards could be on the panel. This proposal would actually ease the congestion in our system, not increase it.

Again, don't forget that both the Crown and the accused would have to agree on who the judge was to be. This would ensure that judges would want to be perceived as neither pro-Crown nor pro-defence. They would have to act accordingly.

The Philosopher King from Canada writes: Ms. Selick, with the time restrictions we already come up against when attempting to schedule a fair and timely trial, wouldn't this simply compound the problem? Since everyone is going to pick the judge they think is most open to their case, we're likely to have some very busy judges while others languish by the watercooler. Moreover, wouldn't this encourage a less critically selective appointment process on the basis that people can choose the judge, when in fact time constraints would of neccesity limit the litigant's choices? Does this not stray from appointing judges with credentials and come closer to appointing them on the basis of ideology? To me your idea increases acceptance of this by attempting to mitigate it, not oppose it. How do you answer this?

Karen Selick: Philosopher King? Wow, I wish I had your self-confidence. Unfortunately, I still don't think you've grasped the essence of my proposal. No, everyone would NOT pick the judge they think is most open to their case, because that would ensure there was a stalemate in the selection process. People would pick someone who had a reputation for being impartial and deciding cases on their merits. That way, they would get on with the lawsuit.

In matrimonial law, we frequently have to hire people to value pensions, appraise houses, or value household contents. Let me assure you, I don't tell my client to go hire the guy who always lowballs everything. Nor do I recommend that we hire the guy who highballs things. I tell my client, "Mr. X has always been a good, impartial pension appraiser. Let's suggest to your wife that we use him. She and her lawyer will probably agree." They invariably do.

Christopher Nelligan from Ottawa writes: In essence the proposal is to turn all judges into arbitrators. But this choice already exists in many places. Many private disputes are already resolved by arbitration, and in many cases an arbitrator's decision is binding and can be enforced in the same way that a court decision is enforced. If you believe that market forces should rule, then the fact that litigants still choose judges over arbitrators means that independent judges are still valuable. There certainly hasn't been a stampede out of the courts and into arbitration.
As for serious criminal cases, we already have juries. Both the state and the accused play equal roles in the process designed to keep them unbiased. For cases now decided by independent judges: Would anyone really want to be judged by someone who's job future might depend on the outcome? There is a power imbalance, since the state is involved in every criminal case. So on balance, arbitrators would probably have a natural bias toward the state, since the state could effectively shut them out of future employment. If an abitrator made a fair but unpopular decision in a sensational case, public pressure would probably ensure that the aribtrator is never chosen in a criminal case again. Judges, on the other hand, do not face these pressures. They don't have to worry about the popularity of their decisions, or whether they'll be working next week. They just have to do what they believe is right and in accordance with the law.

Karen Selick: Christopher, your comment about transforming all judges into arbitrators is quite perceptive. One reason that people still choose judges over arbitrators is that judges' services are free to the disputants (although not to the taxpayers), while arbitrators have to be paid by the disputants. So of course there will be many people who prefer to have their disputes resolved without paying out of pocket. That doesn't mean they prefer the current system of selecting judges. It just means they don't want to spend any more money than they have to.

With regard to criminal cases, you're right that in serious cases, there are juries. Note that nobody objects to the notion of the Crown and the defence both having the right to challenge jurors for bias. Why shouldn't they have a similar right with respect to judges?

Your point about the repeated interaction of the state and the arbitrator is well taken. But I'm not sure the power imbalance is as strong as you suggest. Here in Belleville, there are a handful of defence lawyers who make criminal law their specialty. They do nothing else, and they are in criminal court every single day with numerous cases. I don't think piece-work judges would be much more willing to tick them off than they would be to tick off the Crowns.

As for today's judges not worrying about the popularity of their decisions, I think you give them far too much credit. Don't you remember the Supreme Court of Canada backtracking on the native fishing rights case a few years ago after the public outcry?

Rick Flair from Ottawa writes: Ms. Selick, you mentioned that you do not subscribe to the view that financial tenure among judges is necessary to guarantee impartiality within our courts. If your proposal was put in place, how would one gauge such things as "good behaviour" in staying on the bench? Would those responsible for disciplining judges do so based on how many cases they hear/how well they are liked? Shouldn't we just start from the presumption that judges are impartial until proven otherwise?

Karen Selick: Good question, Rick. That's a great segue into my other radical proposal, namely evaluation forms for judges. I see no reason why judges shouldn't get written feedback, just as hotels do. I've written on this in my column in Canadian Lawyer magazine. If you want to read about it, go to: http://www.karenselick.com/CL9911.html.

In any event, the good behaviour of judges would be judged by the legal community. If a judge engaged in groping staff members of the opposite sex, for instance, you can bet your life we lawyers would hear about it. We would express our disapproval by not short-listing that judge to hear our cases.

Rebecca Dube, globeandmail.com: That's all the time we have for today. Thanks to Ms. Selick for joining us online, and thanks to everyone who sent in questions and participated in the conversation. Ms. Selick, any closing thoughts?

Karen Selick: Whew You folks certainly kept me on my toes this past hour. Thanks for all the questions. It's been fun.