Professors Robert Hazell and Kate Malleson suggested that the Judicial Appointments Commission should present the government with a shortlist of three, ranked in order, for all appointments to the High Court and above. That would allow ministers to form a different view from the commission of the balance of skills required. Tellingly, the two academics cited Irvine's appointment of Lord Bingham as senior law lord in 2000. In reality, this is a disguised but welcome call for the return of the Lord Chancellor's discretion. Bingham was one of three judges promoted at the same time, an inspired matching of skills to vacancies that has become impossible under our current linear system.
The biggest reform of all that the committee seems likely to propose is a redefinition of the concept of "merit". This past summer, the Judicial Appointments Commission quietly amended one of its merit criteria to include "an awareness of the diversity of the communities which the courts and tribunals serve and an understanding of differing needs". That was code for saying there should be more women and minorities appointed. Nobody would countenance appointing anyone other than the best person to a judicial post. But once you begin to grasp "merit" as a level that all successful candidates must attain, you can begin to accept the legitimacy of choosing the most appropriate candidate from among all who reach that level.
This is what Hale is arguing, entirely persuasively in my view. She says that diversity in its widest sense should be regarded as an essential criterion in appointments to the Supreme Court. In her view, it would include specialist legal expertise (the court is short of Chancery lawyers) and professional expertise (the only former solicitor had to retire after two years because of an unnecessarily rigid age limit) as well as personal background and experience (more women and minorities).
Hale told peers: "I should not stick out like a bad tooth, as I do at present." It is because the analogy is so apt that she may not be given the supreme opportunity to put her views into effect.