Jessica Kerr Who makes judges TED
Transcriber:
You’re in a room you don’t want to be in.
Something bad has happened.
There’s a stranger in a suit
with your future in their hands,
A judge.
Four years ago, that judge was me.
The people looking up at me then
had no choice but to trust me.
But what had I done to deserve it?
Australia’s judicial system operates
under a shroud of mystique
which fends off tough questions like this.
But you will have the right to ask
how people like me prepare
for the job of judging.
And you may not feel comfortable
with the answers.
The system needs to change.
To set the scene, first,
let’s think about public confidence.
Judges in Australia are not elected.
Yet, the power they wield is immense.
Ultimately, we trust the system
because we believe
that judges generally get it right.
If we lose that belief,
we risk unbalancing
the whole constitution.
But we live in a time when blind faith
in elites is eroding fast.
Judges are increasingly vulnerable
to the “why” question.
Why do you deserve the power
we have given you?
And so they should be.
Second, it’s fundamental that judges
have to be seen as independent,
doing their jobs without fear or favor.
To avoid any pressure
from the government of the day,
judges have high salaries,
which can never be cut,
and they can’t be fired
for what they say or do.
Unless they’re obviously corrupt or mad.
In exchange, judges agree
to be ultrarestrained,
both in and out of court.
A kind of veil comes down
when a judge is appointed.
It’s a lonely way to live,
and it feeds into this sense
that judges are somehow different
from the rest of us.
Finally, I can tell you that all judges
are in theory appointed on merit.
That sounds good.
And in theory it is.
Judges are chosen
in a confidential process
which relies heavily on advice
from senior judges.
The people chosen
are all experienced lawyers,
traditionally top courtroom
lawyers or barristers,
who spend their days
appearing in front of judges.
They’re all personally
shoulder-tapped for the job,
and the results are in general,
pretty impressive.
But what do we really mean
when we talk about merit?
For one thing, barristers
are historically maler,
paler and staler than other lawyers,
which is really saying something.
It’s been argued that the people
who get chosen as judges are above all,
the ones who remind
existing judges of themselves.
Diversity on the bench is an issue
that’s become impossible to ignore.
And judges are essentially picked
based on how well they argue cases
in front of judges.
But that doesn’t really make sense.
Let’s compare a courtroom
and an operating theater.
Barristers and judges both play
essential roles in court,
just like anesthetists
and surgeons in an operation.
But you don’t hand
an anesthetist a scalpel
just because he’s been putting
people to sleep
for the surgeon for 10 years.
The underlying skill set may be
the same in law as in medicine,
but the jobs are fundamentally different.
The strange truth about judging
in countries like Australia
is that even though judges
are such an important part of government,
we’ve basically privatized
the system of making them.
That work is done, if it’s done at all,
within the private legal profession.
And here’s the thing.
There is no judge school
for wannabe judges.
Judicial appointment is seen
as a badge of honor,
not as a professional milestone
that a lawyer builds up to
the way that a doctor works
towards specialization.
Judges are just lawyers
until the day they take the judicial oath.
And from that day it is sink or swim,
except they can’t be fired
for incompetence.
How do you think it would feel
to know your life was on the line
in a judge’s first ever case?
And how do you think
that judge would feel?
The transition to the bench
can be a baptism by fire.
I had never run
a criminal trial as a lawyer,
and there I was in a magistrate’s court
in the Seychelles,
being asked to hand down
12-year prison sentences
in my first month on the job.
It was terrifying.
Is it any easier to make that transition
as a top courtroom lawyer?
Well, in some ways, definitely.
Barristers do know a lot of law
and the years of watching judges in action
do give them a head start
on how the process works.
But as society changes,
our expectations of judges
are changing, too.
Judges are increasingly called on
for a whole range
of extra nonlegal skills.
They have to be managers and leaders,
politically and culturally savvy,
able to handle relentless scrutiny
and social isolation.
We don’t necessarily expect
or even value those skills in a barrister.
And when we aim
for a more diverse judiciary,
the problem actually gets worse.
If we want less male, less pale judges,
we’re not likely to find them all
in barristers chambers.
And people who haven’t spent
their working lives in court
can’t possibly be expected
to just know how judging works,
no matter how excellent
they may be in other ways.
So what you end up with
is a situation where no new judge
is actually likely to have every piece
of the merit puzzle.
But the number and shape
of those missing pieces
varies hugely from judge to judge.
How is this OK?
Why does our system assume
that anyone comes ready-made
for such a demanding job?
It turns out there are some
pretty strong cultural reasons why.
People who study judiciaries,
that’s me now,
are traditionally reluctant to talk
about behind-the-scenes issues,
like making judges,
for fear of being seen
as interfering with judicial independence.
I think this has gone too far.
Independence depends on public confidence.
And we can no longer be expected to trust
what can’t be explained and justified.
But the legal elite have an obvious
interest in maintaining the status quo.
As a lawyer,
it feels uncomfortable
to criticize a process
that my barrister friends
say is a natural progression,
even a kind of right.
And getting any lawyer to talk openly
about learning how to judge is hard.
People like me learn quickly
that admitting to judicial
ambitions is out of order.
You can aim to be a barrister,
which puts you in the running,
but you can’t be seen as angling
for an appointment.
The contrast with a profession
like medicine couldn’t be more stark.
The incentives in law are all backwards.
I came to realize
that it was only in confronting
these culture barriers
that I would have any hope
of breaking through
from the why to the how.
So how do we talk about making judges?
It starts with government taking more
responsibility for its own processes.
And not just in explaining
why it picks one person over another,
although that would help.
At the top of my list
is ongoing education for judges.
Judges in Australia do actually
go to judge school now,
kind of,
but only behind closed doors
once they’re already on the job.
It’s labeled as CPD: Continuing
professional development,
which is totally routine
and compulsory for lawyers
and other modern professionals.
But because no one is supposed
to tell a judge what to do
or how to think,
in case that undermines
their independence,
it’s all voluntary.
In principle, a judge like me
could just say no.
And that CPD label neatly avoids
the elephant in the room,
the fact that every modern lawyer
needs at least some help
learning how to be a good judge
in the first place.
There’s actually some amazing work
starting to happen in judicial education,
but it is nowhere near enough.
And in any case,
it’s those pre-appointment years
that matter the most.
Government has taken
no responsibility at all here.
And to get past that stigma
on wannabe judges,
the profession itself has to change.
Whether it happens formally or informally,
we need to be thinking
about a judicial career path
and actively creating judicial merit.
We need to support young lawyers like me,
particularly the diverse ones,
to do things that will
make them great judges,
not just great lawyers,
especially when those things
are not likely to get them
promoted as lawyers.
In hindsight, I wish
I’d had way more experience
in things like community justice,
technology and management.
And I so wish I could have gone
to judge school.
Better prepared lawyers
would mean better inputs
for those people who choose
and manage judges
and ultimately better evidence
that those judges deserve your trust.
And that’s what it all comes back to.
Any of us, any day,
could find our future
in the hands of a judge.
In that moment,
we need to be able
to look each other in the eye
and know we can trust the system.
Thank you.
(Applause)