How to choose judges

The judicial system in Canada is supposed to be quite independent from the other branches of politics. Unfortunately, the judges that are selected for the highest courts of the land owe their promotion to the executive branch of the government. It is true that the selection process is more complex than what I am suggesting but I am oversimplifying to show its flaw. If I can show plausible corrupt abuses can happen in the oversimplified system, it is easy to assume that with human intelligence, one can abuse a more complex selection process. If you do not believe this, look at history in any era as to how corrupt people successfully abused their system. To get back to my simplified example of the selection process, we see that the Prime minister chooses the Supreme Court Judges and therefore he will select whomever is most convenient to his agenda.

If the courts are to be independent, how do we avoid the influence of the other branches of government? Should the judges be elected like any other office? The problem with this is that for the judge to be impartial and follow the dictates of wisdom and the principles of the existing laws, he must not have to answer to the whims of a political party who has placed him there, nor to the whims of a society who may occasionally ignore the knowledge and the wisdom that the law provides. Would a society vote for physicians? What happens if the physician is given power to regulate our health and prevents us from eating at fast food restaurants? Perhaps a majority would decide to vote for a physician who would be more compliant to our vices? Choosing a judge should be decided in a more neutral manner.

Some possibilities include, allowing the head of the opposition to make the selection of the judges. After all, the judge must be a counterweight to the other branches so why not have the official opposition choose the judges. Perhaps having a vote within the judicial profession based upon the peers who have seen the candidate in action, this would place every potential judge on the ballot so that there is no official campaigning to try to convince others through flatteries. Another method of selection would be to have the Provincial Premiers (equivalent to State Governors) vote for the next Federal Judge selected from the Provincial Judges while the Municipal Mayors vote for Provincial Judges selected from the Municipal Judges and Municipal Judges are voted by legal professionals if they have the proper criteria. A combination of the above would probably be the best. For obvious reasons, a more elaborate method is not the purpose of this blog, only the offerings of possibilities to allow alternatives. Complexities can always be fine-tuned in other formats. The blog is more exploratory than detailed.

My favorite methodology would be to find ways to combine the above by dividing a certain amount to be selected by method A, a certain amount selected by method B and use a lottery system to select the remainder. To explain: we want a total of 12 Supreme Court Judges, we use method A (selection by Opposition Leader) to cover 4 posts. We use method B (selection by Provincial Premiers) to cover another 4 posts. We use a lottery method (call it fate?) to select the 4 remaining posts. At this point we can have the current Judges vote amongst themselves for a 13th member (to break ties if you have 6 vs 6).

If we want an independent Judicial Branch, we must not allow the influence of any other government branches to muddy the waters. The selection must be more based upon performance on the job (meritocracy) than charisma or political beliefs. There should also be some basis of allowing plausible opponents within one of the branches to have a say in the selection process because the goal is to have counter-balance and challenge the existing government from going too far (in Canada, this would be Provincial Premiers or the Leader of the Opposition or a combination of both). Last but not least, we want a certain randomness to determine the selection to avoid the human corruption entering the equation (but we do not want to rely too much upon randomness).

Again, I must stress that this is only a roughly drawn skeleton, there is a lot of fine-tuning to be done on the skeleton, not to mention the fact we must add cartilege, muscles, organs, tissue and the rest before it is a proper body. I just think that the current system should not be allowed to continue without scrutiny and major corrections made.