No LinkedIn or Seek needed - how we pick our Supreme Court Chief Justice

Wednesday, 1 August 2018

With the world watching, Donald Trump walked into the East Room of the White House in July to announce Brett Kavanaugh was his pick to fill a spot on the United States Supreme Court. 

In New Zealand, a similar but far quieter process is underway.

In March 2019, New Zealand's head of the Supreme Court, Justice Dame Sian Elias, is set to step down. 

Justice Elias has been the Chief Justice of the Supreme Court since 2004, but her 70th birthday is looming, meaning she will reach the compulsory age of retirement.

READ MORE: Justice Elias rebukes judges over bullying claims

A list of potential nominees to replace Justice Elias has likely already been put together by officials, which will eventually be whittled down and handed to Prime Minister Jacinda Ardern. 

It will be up to Ardern to make the decision as to who should head New Zealand's judiciary, based on advice she gets from the Attorney General. 

Unlike the US, there will be no confirmation hearings, and the decision will unlikely be the most important of Ardern's career.

In fact, it is expected she won't consider the personal politics of the next appointee. 

'In all my time appointing judges over nine years that was never a factor and can never be a factor,' Chris Finlayson QC said.

As a former Attorney General under the National government, it was Finlayson's role to appoint judges.

'I didn't know the politics [of] most of the people I appointed, and nor did I care. What mattered was if they would make good judges. If you start to inject politics in there you are in the slippery slope to what is going in the United States,' he said.

'We don't want that in this country. We want to get the right people on the bench who will act in the interests of justice without fear or favour. That has to be a bedrock ​principle.'

As well as being one of five members of the Supreme Court, the Chief Justice's role includes leading the judiciary and being a 'caretaker' for the law. 

New Zealand's separation of powers means the judiciary – or judges – are completely separate from the executive or legislative arms of government.

The Supreme Court often clarifies law or helps develop new law, and the Chief Justice has a role in shaping what tone that law takes.            

Unlike the other judges on the senior courts, the Chief Justice is picked by the Prime Minister on advice of of the Attorney General. 

It is the Governor General who ultimately signs off the request. 

The Chief Justice is also the link between the judiciary and the other arms of government. This includes liaising with the Government on policies or practices that impact on the judiciary. 

If the Governor General is ever absent or incapacitated, the Chief Justice acts as the administrator of the Government, with all the powers and functions of the office. 

The pool of those the Prime Minister has to choose a new Chief Justice from is relatively small. The job doesn't go up on Seek, and potential candidates are unlikely to hand in their CV. 

Instead, a senior judge on either the High Court, Court of Appeal or Supreme Court will be quietly shoulder tapped and asked if they want to take the reins.

'The question is, will it be one of the current judges of the Supreme Court, or could it be someone from within the other senior courts?' Finlayson said. 

'Of course, they may say no. In my time, I have approached people who said no they don't wish to go on the bench because they were happy where they are.' 

Former Prime Minister Sir Geoffrey Palmer is keeping mum on who he thinks will be picked but agrees the list of potential candidates is small. 

'What you have to have is the best lawyer you could possibly get,' Palmer said. 

'It is not a big pool to chose from.

'You can be confident that the process that is gone through will be careful and thorough. The Chief Justice is a very important and influential figure in shaping the judiciary and ensuring that it works to the highest possible standards.'

The ideal candidate would be intellectually capable but also have a good grasp of New Zealand society, Palmer said. 

'It is important that anybody in the senior judiciary has a good understanding of New Zealand society and has been active in it so they understand the way in which the community works and its values.' 

The rumours are rife in the legal world as to who the next pick will be, and it is unlikely the name will really be known until the Prime Minister announces it. 

'Lawyers often like to speculate,' Palmer said. 'Because lawyers have a great interest in who judges might be because they appear in front on them.

'I have not heard a whisper.' 

While he wouldn't be drawn on it either, Finlayson said he had people in mind who would make good leaders of the judiciary. 

'Everyone has been starting to talk about it for the last couple of years. You would have to be a bit of a bozo if you had not turned your mind to it.' 

Senior lawyers spoken to by Stuff gave a range of names of judges who they thought would replace Justice Elias.

Two names lawyers mentioned most were Justice Stephen Kós and Justice Helen Winkelmann. 

Justice Kós is the current President of the Court of Appeal, while Justice Winkelmann was the former Chief High Court Judge before being appointed to the Court of Appeal. 

One prominent lawyer said either of the two judges would be a good fit. 

'I hope for a strong judge who also not only has the intellectual capacity and had some real vision for the New Zealand legal system and how it should be developing.

'I think both Stephen Kós and Helen Winkelmann would fit that bill.' 

The office of the Attorney General declined to comment on how the process of picking a new Chief Justice was progressing. 

However, it is expected an announcement as to who will replace Justice Elias will be made early next year.