The Appointment and Removal of Judges
| Author | Sir Harry Gibbs |
| DOI | 10.1177/0067205X8701700301 |
| Published date | 01 September 1987 |
| Date | 01 September 1987 |
| Subject Matter | Article |
THE APPOINTMENT AND REMOVAL OF JUDGES
SIR
HARRY
GIBBS*
This
is
the third series
in
the annual Menzies Lecture series. The lectures were
delivered at the University
of
Virginia and at William and Mary College
Williamsburg on 8 and
12
October 1987.
It
is
a privilege for
me
to come to the University
of
Virginia
as
the third
Menzies Lecturer. The lectures are given,
in
alternate years, in Virginia and
Australia,
to
honour Sir Robert Menzies and to mark his contribution to the law
and to public life. Sir Robert Menzies served
as
Prime Minister
of
Australia for
longer than anyone else who has held that office. Before his entry into political
life he was
an
eminent member
of
the Bar and appeared with distinction in cases
of
the greatest importance. He delivered the Jefferson Memorial Lecture at this
University
in
1963 and came here
as
scholar in residence in 1966. He formed a
great affection and regard for the University, and spoke
of
it
in
the following
words:
"This University represents a combination, rare
in
this world,
of
vision and
achievement by very great men . . . The more I see of it, the more I love it.
It
is
beyond question one
of
the
most beautiful universities
in
the world."
Now that I have seen this University I can give my respectful endorsement to
those words.
Confidence in the laws, and in the judges who administer them,
is
an
essential
condition of an ordered, stable and civilised society. The confidence
of
the
public in the judiciary can be maintained only if the judges are seen to be not only
fully competent to perform their functions, but also independent, impartial and
of
complete
integrity-
integrity being, as Francis Bacon said
of
judges more than
300 years ago, "above all things
...
their portion and proper virtue". 1 This is
true, not only
of
judges
of
the highest courts, but
of
all judges, because a bad trial
judge may
do
damage which in spite
of
the most elaborate system
of
appeals may
prove irreparable. General statements of this kind would no doubt command
agreement
in
the United States
as
in other common law countries, but the
procedures
by
which these aims are sought to be given effect differ strikingly in
the United States from those employed elsewhere.
Traditionally, at common law, judges were appointed by the Crown and in
most common law countries today appointments are still made by the executive
government alone. That
is
the case in Great Britain, Canada, New Zealand and
Australia but not,
of
course, in the United States, where judges appointed
by
the
President to the federal bench must survive the vigilant scrutiny
of
the Senate,
and judges
in
the states are chosen in a variety
of
ways
of
which popular election
is
one. There are many other possible methods
of
selection
of
judges, including
election
by
the legislature (as in West Germany and Switzerland), selection
by
a
committee comprising representatives
of
the legislature, the executive, the
judiciary and the bar (the Israeli method) or appointment by the executive on the
recommendation
of
a judicial council or selection committee (as in some
*The
Hon Sir Harry Talbot Gibbs
G.C.M.G.,
K.B.E. Chief Justice
of
the High Court
of
Australia
1981-1987.
1 F Bacon, Essay
On
Judicature (1612).
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