Inclusion and Diversity Note: Merit

25/10/2021

“Merit” is commonly propounded as the most desirable basis for selection processes. Active promotors of equality and diversity often use it to explain why “jobs for the boys” is an unsatisfactory approach: appointments should be made based on a candidate’s merit, not on their connections. Others object to “affirmative action” policies on the basis that they unfairly disadvantage those who happen not to be members of an historically disadvantaged group by applying non-merit based criteria.

The first group might think that it is unfair to better qualified applicants to choose a candidate because a person conducting the selection process knows them, or knows of them. Members of the second group might think that it is unfair to those who happened to be born male or white, for example, not to choose them if they are thought to be better qualified for the job just because they are not a woman or black.

(Underlying the feeling of unfairness may be thoughts such as “they don’t deserve it as much as I do” or “I didn’t choose to be a man” and so I should not be disadvantaged for that reason. These reactions do not, however, bear close scrutiny: it might readily be argued that one does not deserve success any more than another because they were born smarter, and one does not choose one’s intelligence level any more than one chooses one’s sex.)

Members of the first group, however, might be concerned with the interests of the organisation to which appointment is to be made rather than the interests of individual applicants. One such interest might be diversity. If a white male chair of a board appoints only his mates from school (ie white men), then the outcome is likely to be less diversity on that board (and, therefore, be against the company’s interests). But this is the very thing which incurs the wrath of the second group: a focus on diversity as a desired outcome means the application of characteristics which the second group does not associate with merit.

The concept of merit is often unduly confined. Any selection process applies criteria on the basis of particular sets of interests. Some are more focused on the interests of individual applicants than others. A candidate’s merit is best seen as their propensity to satisfy relevant interests or purpose.

It is easy to see that merit in the context of selection process is context driven. Most people would agree that the most meritorious 100 metres runner is the fastest. It is more difficult to determine who, from a group of applicants, is the most meritorious footballer. Is it the fastest player? The player with the best ball-handling skills? The strongest? The one who scores the most goals? The criteria are broader not only because of inherent immeasurability and variability of what it takes to be a good footballer, but also because there is a broader interest in play: that of a team. If the football team for which selection is being considered is the Australian national team the interests are broader again, and the criteria may be wider. Similarly, the most meritorious person to fill a vacancy on a board of directors is the person most likely to satisfy the interests or fulfil the purposes of the company.

Some selection processes are more appropriately focused on the interests of individual applicants than others. In the context of our profession, judicial appointments most clearly warrant a focus on interests well beyond those of individual applicants. Public institutions, particularly courts, should represent the community which they serve. Those which exercise power over members of the community should represent diverse perspectives and bring diverse values. Public appointments send a message to society about who is valued within and by that society. They send a message about what characteristics, even personality traits and attitudes, are valued.

Fairness to individual applicants is subsidiary in this context. Whilst one might still speak in terms of “merit”, that term should be understood by reference to the interests or purposes of the court. When we think of merit we must move beyond high IQ as customarily measured, memory, and even brilliant legal reasoning skills. The interests and purposes of courts as public institutions are broader.

The appropriate criteria for senior counsel selection ultimately depends on its purpose and, in particular, what it seeks to identify. Is it the barristers who are most likely to win a case? The most eloquent? The most thorough with a tendency to be the most prepared? The best known in the profession? The busiest? The most active? The most popular? The appropriate criteria will depend upon the purpose of these appointments, in the context of their public-facing nature. Further, what counts as “merit” will depend on those criteria.

Briefing decisions are perhaps the most complex, and require more detailed consideration than space here allows. Suffice to say that when thinking about how to achieve “equitable briefing” the focus should be on the interests and purposes of the decision-makers: most commonly, lay clients and solicitors. The focus might be on explaining how equitable briefing practices are in fact in the interests of clients and solicitors, and best serve their purposes.

None of this is to say that fairness to individual applicants is not an important part of at least some selection processes. When a selection process is an inherent part of, or imposed upon, one’s chosen endeavour or livelihood, fairness is critical. That is why, for example, the publication and fair and transparent application of criteria is critical in Olympic selection and, in our profession, the process for senior counsel appointment. The purpose of this piece is not to diminish the significance of fairness in those kinds of processes but, rather, to disentangle individual fairness from merit, and to consider the expansive concept of merit appropriate in the context of selection processes.

By Elisa Holmes

This article has been prepared by a member of the Association’s Diversity and Equality Committee, as part of the DEC’s weekly blog series on Inclusion and Diversity at the NSW Bar


If you no longer wish to receive In Brief, please notify the Bar Association's