In the early years of the twentieth century there was a saying in America that the Supreme Court always followed the election returns. It wasn't simply that presidents chose the judges with the Senate's approval; judges themselves were expected to take account of changes over time, and shifts in the public mood. Some states became so swept up with popular approval that they elected their judges - often with disastrous consequences. When I was a graduate student in the American South I saw elected judges mete out the most appalling "justice" against those involved in the civil rights struggle.
But judicial officers must keep abreast of the times. After 1932 President Franklin Roosevelt became incensed when the Supreme Court kept striking down the legislation people had voted for by huge margins. Deaths and timely resignations from the bench enabled the court to regain a semblance of modernity. New Zealand has never experimented with elected judges. I hope it never does. But the fact that judges have no fear of facing the voters can cause problems. Some have convinced themselves they are a wiser tier of government, untainted by politics. Theirs is to pronounce; politicians to obey.
A classic example involves our Court of Appeal and their 1987 judgement on the principles of the Treaty of Waitangi as applied to SOEs. Their Honours purported to be abreast of the times, but indulged themselves at the executive's expense. Amongst other things, they discovered new concepts called "partnership", "reasonableness" and "good faith" which Maori and the Crown owed each other. Recently I re-read that judgement. The lack of historical understanding shocked me. As I waded through righteous utterances about what each side owed the other, I kept asking myself who these "sides" were. In their Honours' minds it seemed as though the worlds of Maori and Pakeha had stood still since 1840. At that time the number of people of mixed race could be counted on the fingers of two hands. By 1987 no full-blooded Maori existed any more. The overwhelming majority now calling themselves Maori were more than three quarters Pakeha. Tau Henare whose Maori credentials can't be questioned, tells us he's fifteenth sixteenths Pakeha. Which side of such a person's being owes the other what? And, if anything, how much? These questions seem not to have occurred to the Court. In their Honours' minds, Maori and Pakeha were still the same two peoples they had been in 1840. In effect, someone with a speck of Maori ancestry could command partnership with the Crown, and derive benefits due to Maori, on the basis of personal choice.
That court decision was issued just as the then Lange government was being resoundingly re-elected with their SOE policy at the mast-head. While the public was endorsing Labour's reforms, the Court seemed intent on pushing a concept of racial partnership that threatened government policy and bore no relationship to historical changes, or the ways in which the makeup of New Zealand society was continuing to alter before our eyes. Would the judges have survived the ballot box with their decision? I very much doubt it.
Since then it's become common for judges to pronounce on racial issues as though they possess some superior moral authority. A few Maori Land Court judges have turned the Waitangi Tribunal into an advocacy organisation on behalf of Maori, rather than a body which was designed to weigh historical evidence dispassionately before arriving at sensible, as opposed to romantic, conclusions. Judges, of course, never pay the bills their activism costs. Politicians on behalf of the wider public do. Not surprisingly, the politicians are irked by some judicial utterances. Of course there's an appeal procedure, but with our clogged court system that takes time. Meanwhile, the damage has been done. Worse, unreasonable expectations have been raised.
The price of not electing judges may have to be an occasional political clip around the judicial lugs such as the one so resented by Judge Wickliffe from the Prime Minister. Wickliffe, remember, sat on a case relating to her own tribe, then excused herself from further hearings, then took a swipe at the Prime Minister in her written judgement after the question was raised as to whether she should have heard the initial case. Silly stuff. Our country's history is littered with judicial decisions that are as fallible as any made by politicians. Judges should remember that those who face the voters will, in the end, call the tune.