Judicial Compensation System Promotes Politicization

 

There has been much controversy recently over the question of how to ensure that the judges Canada appoints are the best candidates for the job, rather than mere political sycophants.  So far, the discussion has focused exclusively on how things should be handled before a judge is appointed. But if we really want a good justice system, we should also look at what happens after a judicial appointment is made.  The current system, I would argue, has some major flaws.

For starters, all judges appointed to the same court are paid the same salary, whether they are rookies or 20-year veterans; whether they are efficient, hard-working types who clear the docket within the allotted time or procrastinating ditherers who end up leaving cases over for their fellow judges to handle; whether they make wise decisions that are never appealed, or make frequent errors that force litigants on to appellate courts.

In what other occupation do we expect people to be satisfied with exactly the same salary as all of their colleagues--regardless of experience, productivity, or the quality of their output?  I can’t think of any.

Yes, we expect our judges to be individuals of integrity who will work hard, be conscientious, and keep up to date on the law.  But even the most sterling character would find it hard to remain unaffected by the fixed salary system.

Imagine being appointed as a judge when you’re 50 years old, and then realizing that this is it--the end of the road for salary increases--for the rest of your life.  Yes, judges are comfortably paid, but even the rich like to have something to look forward to.  Even the rich get fresh motivation and job satisfaction from earning more.  

But individual judges can’t earn more—not unless they can persuade the government to give an increase to all judges simultaneously.  This explains why The Canadian Superior Courts Judges Association (in effect, the judges’ union) perpetually pushes to increase judicial salaries far beyond the rate of inflation.  It’s not that higher salaries are needed to attract new applicants.  No, there are plenty of qualified individuals willing to accept the salary and perks that go with the job. It’s that incumbent judges are tired of being stuck at the same salary level and want an increase.

But there’s more.  Superior court judges—at least, in Ontario—are allocated a fixed number of weeks each year in which they are required to hear cases, and another number of weeks in which they are supposed to write decisions.  But who ever inquires into what they do during their “judgment weeks”? 

A search of the Ontario Reports Plus database for 2006 turned up numerous Ontario judges who wrote fewer than 5 pages of reported decisions throughout the whole year.  One apparently inexhaustible judge, by contrast, wrote 43 reported decisions comprising 265 pages—the equivalent of a good-sized book.  Where were the less prolific judges during their judgment weeks?  At the yacht club?  Playing bridge?  Tending their gardens? 

These individuals may actually be very good judges.  The volume of their written decisions is only one of many criteria upon which judicial performance may be evaluated.  However, it’s pretty clear that this group doesn’t need nine weeks of every year allocated to writing decisions.

In a rational system, judges who don’t work during their writing weeks would either be paid less than those who do, or else their time would be reallocated to hearing additional cases. If we did this, our much-lamented shortage of judges might actually prove to be illusory. 

However, there is no incentive for a judge to volunteer his unused writing time to hear additional cases.  His salary rolls in just the same whether he hears extra cases or grows orchids.  If his colleagues notice that he seems to have a lot of time off, there’s nothing they can do about it.  He can’t be fired for it.

In our concern to guarantee judicial independence, we have actually established a system of no accountability—not only for what judges decide, but also for how much or how little work they do.  This is not a healthy environment for anyone to work in.  The risk society runs is that we will transform some of our most accomplished and productive members into slackers. The rewards for continuing to accept a grueling workload are virtually non-existent compared to when the individual was a lawyer. 

But there’s another risk, too.  With financial motivation gone, it will be the ideologues among the judiciary who will tend to step forward and seed the law reports with their decisions. They have other motivations besides money—the ambition to move up the judicial ladder into appellate courts, or the desire to influence the direction of the law in accordance with some ideological agenda.

So it’s not just the selection process that tends to politicize the judiciary. The compensation system does it too. 

There is a solution to this problem, as I’ve written before.  It’s to allow opposing litigants to jointly select their judge, with judges being paid according to time worked.  Only unbiased judges would get many cases, and we wouldn’t need political pre-screening of applicants because judges would be screened daily by those requiring their services.

 

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