As described in past posts, a typical “merit-based” government appointments process starts with identifying a vacancy to be filled and specifying the qualifications required; then publishing the notice of vacancy with the specified qualifications and inviting applications; then screening out the obviously unqualified candidates and having the rest write a pass/fail examination; then bringing those who passed to a face-to-face interview with a selection-committee, followed by the selection committee identifying all candidates it deems sufficiently qualified to be included in the unranked list of qualified candidates that it sends to the Minister’s Office; and, finally, having the Minister’s Office free to choose arbitrarily from that large unranked list of “qualified” candidates the names of those who will be appointed and those who will not.
In my last post on this subject, I described the final selection process within the “Minister’s Office” as the black box in which, out of public view, partisan and patronage influences finally have their way – or at the very least are seen to.
In my view, the only means of structuring a merit-based appointments process that is and is seen to be free of partisan/patronage influences is to blow up that black box.
Here is is how to do it.
A. Establish a transparently, indisputably non-partisan, expert selection body.
B. For each vacant position, give that selection body the following mandates: to identify the qualifications required for that position; to recruit candidates; to evaluate those candidates; and, finally, to recommend to the Ministry’s Office – to the government – the one person who in the selection body’s view is the best candidate for that position.
C. Reduce the Ministry’s Office’s decision-making options with respect to the selection committee’s recommendations to three: (1) accept the recommendation, and appoint the recommended person to fill that vacancy; or (2) ask the selection body to reconsider its recommendation; or (3) reject the recommendation.
D. Provide that the government can only elect options 2) or (3), if it gives the selection body written reasons for that decision.
For a government devoted, in the selection and appointment of members of adjudicative tribunals, to maximizing merit, and to eliminating partisan or patronage influences – actual or apparent – what objections could there be to an appointments process structured in that fashion?
RESTRICTING THE SOVEREIGN’S PREROGATIVE POWERS?
One might expect, of course, to hear the argument that such restraints on the government’s appointments power would infringe upon the sovereign’s appointments prerogative.
WELL, THEY DO IT IN THE U.K.
The short answer to any concern about restricting the sovereign’s appointments prerogative is that in the U.K., where our common law principles of sovereign prerogatives originated, the process for appointing both tribunal members (in U.K. terms, “tribunal judges”) and judicial judges is exactly as described above, and has been that way since 2007. **
** U.K. Judicial Appointments Commission website:
… One candidate is selected for each vacancy, providing there are sufficient numbers of selectable candidates available. Candidates are then recommended to the Appropriate Authority (Lord Chancellor, Lord Chief Justice or Senior President of Tribunals).
The Appropriate Authority can accept or reject a recommendation, or ask the Commission to reconsider it. If he or she does not accept a recommendation, written reasons must be provided to the JAC.
See: U.K. Judicial Appointments Commission website – https://jac.judiciary.gov.uk/about-us