Looking for the Good Judge: Merit and Ideology

THE JUDICIAL APPOINTMENT PROCESS IN CANADA, Nadia Verelli, ed., Forthcoming

11 Pages Posted: 2 Aug 2011

See all articles by Allan Hutchinson

Allan Hutchinson

York University - Osgoode Hall Law School

Date Written: August 1, 2011

Abstract

The ambition to appoint judges who are truly meritorious is unquestionable. Nobody would want to have judges on such an important tribunal who did not possess all the technical and professional attributes of a truly competent judge. This much is undeniable. The problems arise when people assume that this can be achieved with indifference to the ideological leanings of any particular candidate. It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges. However, the assumption that merit and ideology are unrelated notions and that is possible to attend to matters of merit without taking into account ideology is mistaken. No matter how much people may wish that it were so, it simply is not. Merit and ideology walk down much the same street. Any denial to the contrary flaunts both history and analysis. Moreover, how the relation between merit and ideology is understood has profound implications for the whole process of not only appointing judges, but also evaluating their judicial performance.

In this short essay, I will demonstrate that, while merit and ideology do not collapse into each other, it is simply not possible to talk of one without the other. Good judges recognise that the resort to values (and contested ones at that) is an integral and inevitable part of the judicial task. In the first part, I explore what might be involved in being a ‘good judge’. I then proceed to examine how Canadian jurists have sought to explain the resort to values in .the adjudicative process. In the third part, I respond to the claim that ‘activism’ is something that judges can and should avoid. Finally, I look at the institutional implication for the judicial selection process of understanding the judicial function as a mix of merit and ideology. Throughout the essay, I will insist that any reasonable appreciation of the judicial function must accept that the sin is not accepting the ideological dimension of adjudication, but trying to hide it.

Keywords: Supreme Court of Canada judicial appointments, judicial appointment, ideology of appointed judges, what makes a good judge

Suggested Citation

Hutchinson, Allan, Looking for the Good Judge: Merit and Ideology (August 1, 2011). THE JUDICIAL APPOINTMENT PROCESS IN CANADA, Nadia Verelli, ed., Forthcoming, Available at SSRN: https://ssrn.com/abstract=1903801

Allan Hutchinson (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
(416) 736-5048 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
289
Abstract Views
1,053
Rank
192,349
PlumX Metrics