How should a modern democracy select its judges?
The chaos and agonies of a partisan Justice Kavanaugh confirmation process may be outweighed by the benefits of political transparency that a public procedure adds to the inevitably political angle involved in appointment of Judges to a country’s Supreme Court.
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By Matthew Parish
This article is written in the immediate aftermath of the confirmation of Justice Kavanaugh to the US Supreme Court in early October 2018, but was published several weeks later. That is because it is not intended to be an entry into the bitter partisan battles that swept Washington, DC relating to the nomination of a single Justice to the US Supreme Court in advance of the contested November 2018 Congressional mid-term elections. Instead it looks at a more fundamental question. Did the confirmation process for Justice Kavanaugh teach us anything about how Judges should be selected in a modern democracy?
There is inevitably politics in selecting Judges, but the politics may change in each case. Irrespective of the country, somebody must select Judges and hence politics arises in influencing those persons’ opinions through different kinds of lobbying. Judges are not all the same, and their differences do not lie solely through the varying quality of their academic ability. There is no system in the world that selects Judges exclusively by means of an examination, with the judicial positions going to the highest-scorers. Even then there would be politics in deciding who gets to the sit the exam, or who receives the best tuition on how to sit the examination. Personal qualities translate into political differences. Some judges have a more restrained temperament; others are greater risk-takers. Some Judges are more conservative on issues with a social policy dimension that might come before them; others are more moderate. These may be relevant factors for whoever the decision-makers are in appointing Judges, to decide which Judges to appoint.
It is no good saying that a system does not allow Judges to be political (something which is sometimes heard in the context of the British judicial appointments system). That may amount to nothing more than an assertion that the judiciary has an innate political perspective – for example, one of conservatism – because the system is designed to ensure that it only appoints Judges with the same political perspective as their predecessors. Judging cases is a governmental act, and hence it is innately political. Even if it is not political upon conventional party lines, there is always politics in deciding matters that affect the civil rights and obligations of citizens.
I will contrast two systems for the appointment of Judges which on their face could not be more different. Under a series of complex legislative provisions, to be eligible as one of the twelve Justices of the United Kingdom Supreme Court a person must either have been a High Court Judge or a Court of Appeal Judge (the UK equivalents of a Federal District Judge and a a Circuit Court Judge) for at least two years; or a practising lawyer for 15 years. Justices of the Supreme Court hold office until the age of 70 when they are obliged to retire. There must be a Selection Commission. The President of the Supreme Court chairs the Selection Commission. The The President appoints one other senior Judge to the Commission who is not a Judge of the Supreme Court. Three other members are nominated, one each, by the Chairmen of the Judicial Appointments Commissions (there are three). Each Judicial Appointments Commission is composed of two-thirds Judges and one-third lay members, in each case appointed by Judges. Some additional members of each Judicial Appointments Commission are appointed by the Judges’ Council, a group of Judges appointed by the Lord Chancellor, the Chief Judge of the country. The Selection Commission is obliged to consult with a series of Judges before it makes its recommendation to the Lord Chancellor, who finally decides whether to approve the appointment (in practice he always does). If the appointment is for the President of the Supreme Court, then the (current) President still sits on the Selection Committee (if the President has not resigned summarily or died in office); otherwise the most senior member of the Supreme Court takes his place on the Selection Committee.
In this process, the only democratic input is the Lord Chancellor, who is a member of the Houses of Parliament and the Cabinet, and is appointed by the Prime Minister. Nevertheless the Lord Chancellor’s role, himself occupying a judicial role, is minimal in the foregoing context. The system can only be described as a system for the appointment of Judges by Judges down the generations. In other words, the Judiciary has the same appointment principles as London gentlemen’s clubs. True, the statutory language requires all persons participating in the process to select on merit and to act in the utmost good faith in various ways. But this involves discretion, and where there is discretion there is politics.
There are no formal qualifications for appointment as one of the nine Justices of the US Supreme Court; a person does not even need a law degree to be eligible for consideration. Under Article II(2) of the US Constitution, the President of the United States “shall nominate, and with the Advice and Consent of the Senate, shall appoint … Justices of the Supreme Court”. The practice that has emerged is that after consulting such persons as he wishes, the President nominates a candidate and the Senate Judiciary Committee holds a series of public hearings at which the nominee answers questions on oath. The Judiciary Committee then makes a recommendation to the US Senate, which votes on the nominee. If the nominee receives the requisite number of votes (the majority needed has changed over time but is now recognised as being a bare majority of the Senators, with the Vice President being able to break any tie) then the nominee is confirmed and the President appoints him or her. Upon the rare occasions where it becomes clear that a nominee cannot receive the requisite Senate majority, he or she will withdraw or the President with withdraw his or her nomination. US Supreme Court Justices are appointed for life.
Perhaps the most important difference between these two systems is the level of public scrutiny involved in scrutinising candidates. The process of nomination by a US President is entirely rule-free – the President can follow any or no rules or conventions in deciding who he nominates, and he can release as much or as little information to the public as he wants about the process by which he is selecting his nominee. Often the only information released is by way of media leaks. However once the process reaches the Senate, the procedure is almost entirely transparent. The confirmation hearings are televised. The documents available to members of the Senate are not always available to the public; practice varies. The deliberations of Senators on the nominee are very public, often being made by way of televised public speeches. The nominee may appear on television in media interviews, and/or may write newspaper editorials. There may be media discussions of the candidacy. In the United Kingdom, this never happens. The deliberations of the Selection Committee are private, and even learning the identity of the Selection Committee’s members is extremely hard. The results of consultations with various Judges are private. The public cannot acquire knowledge of these matters, save perhaps after complex freedom of information disclosure litigation which to the best of my knowledge has never been attempted. Whereas in the United States the system of approval of Supreme Court judicial nominees is undertaken in a very transparent way by a group of politicians chosen in democratic elections, in the United Kingdom the approval of the same such people is undertaken behind closed doors, in proverbial smoke-filled rooms, by groups of judicial insiders and the result is then presented to the public on a plate.
It might be said that the reason for the difference in the two systems is because the decisions of the US Supreme Court are of greater political and social moment, and hence a greater public interest in the appointment system and the political characteristics of the Judges is appropriate. But this argument does not hold water. The United Kingdom Supreme Court issues decisions of equivalent political importance to the United States Supreme Court. Amongst decisions of recent years decided by the UK Supreme Court are the question of whether legislation banning abortion is inconsistent with the UK’s constitutional scheme of human rights; whether a person has a right to voluntary euthanasia; whether interests of national security can trump the constitutional right that a trial be held in public; and a criticism of the canons of statutory interpretation advanced by the European Court of Justice (a question which goes to the heart of member states’ rights and principles of federalism within the European Union). These decisions are every bit as important as the issues decided by the US Supreme Court. Their similarities to landmark decisions of the US Supreme Court are that they are all legal questions with a substantial political element. The argument that the US Supreme Court decides more politically important questions, and therefore this merits a more transparent and politicised system of judicial selection for Judges of the highest court, is therefore a non sequitur.
Supreme courts decide questions at the apex and intersection of politics and law. How should their Judges be chosen: behind closed doors, by other Judges, or in front of the television cameras, by politicians? The United Kingdom and the United States have what in many ways are parallel and mutually comprehensible legal systems. Yet this stark distinction in the way their judicial decision-makers are appointed (and parallel considerations apply in lower courts as well, although there is scant value in setting out the details here) calls for explanation. Why are the systems so different, and which system is better?
Now consider a potentially more problematic example. The Constitutional Court of the Russian Federation has 19 Judges nominated by the President of the Russian Federation and approved by the Federation Council, the upper Chamber of the legislature of the Russian Federation, for a period of 12 years. Their statutory qualifications are that they must be of at least the age of 40; they must have a legal education; they must have practised law for 15 years; and they must have a post-graduate qualification. The Court has very broad powers: impeachment of the President; declaring legislation unconstitutional; and approving certain international treaties. The Federation Council has 170 members, Each so-called “federal subject” (a federal unit of Russia) sends two Councillors, out of 22 Republics, 46 oblasts, nine krais, three federal cities, four autonomous okrugs and one autonomous oblast. Members of the Federation Council are not directly elected; they are chosen by territorial politicians. For each federal subject, one Council is selected by the provincial legislature and the other is nominated by the provincial governor (in most cases the governor is appointed or recommended by the President of the Russian Federation) and approved by the provincial legislature. Members of the provincial legislatures (and governors) are predominantly members of the United Russia Party, the party of the Russian President, for every federal subject. The President of the Russian Federation can influence personally every person standing on a United Russia ticket. Therefore the President has direct control over almost 50% of the Federation Council (the members chosen by governors appointed or recommended by him) and indirect control over the other 50% of the Federation Council (the members chosen by legislators approved by him).
This system of appointment of Judges of Russia’s highest court combines the worst of both worlds that this article discusses. It is entirely political – the President of the Russian Federation essentially decides everything – and it is entirely non-transparent – there are no debates, public or private. The judiciary is not independent of the executive, which is not independent of the legislature. All branches of government are fused into one.
In a modern democracy, the stated aim of an independent judiciary is that political power is assigned to an ostensibly apolitical branch of government. But Judges are political in the decisions that they make. Therefore, the US argument goes, their views about political issues ought to be tested in public prior to appointment. It is not that the Justices of the UK Supreme Court are bad by virtue of the absence of transparency in the system of their appointment: far from it. The corridors of Whitehall contain good smoke-filled rooms, premised upon the elitism and integrity of the club. The principal difference is that a system in which Judges appoint one-another is more resistant to the winds of political change than one in which politicians choose this. That is because politicians are subject to frequent democratic mandates, but Judges are not.
The order of causation proffered in the argument above in favour of the US system – that the US Supreme Court deals in political cases because there are more transparent and thus politicised procedures for the appointment of its Justices – is the wrong way round. The US view embodied in its Constitution and the Federalist Papers, the commentary thereupon, is that because the US Supreme Court will inevitably deal in political cases, the bright light of transparency in testing the political views of candidate Justices is desirable. Senior Judges are political and hence a public process should be used to test them.
It is very hard to argue with this. I seen no case against the position that even if the UK Supreme Court judicial selection system were otherwise perfect, it would benefit from a far sharper cleansing light of transparency. The British can learn a lot from the US system. There is nothing to be said for secrecy in the context of appointment of any public official liable to exercise a politicised function. Fine words for how people ought to act in secret is less attractive than dirty words used in the context of a public confirmation process. The muck will be slung in either case. The public has a right to know what the muck is. This will hold politicians who make the decisions – whether they are elected or in robes – to higher standards in the decisions they make, and will assist the public in understanding why the decisions made were made as they were.
As to the question of whether politicians or Judges should decide upon judicial appointments, I refer the reader to the arguments of William H. Rehnquist, sometime Chief Justice of the US Supreme Court. His case is that the political alignments of a governed population change from time to time. Those political views are best represented in the democratic choices that they make. Hence the political input of democratically elected politicians is required into the selection of Judges who will inevitably make politically coloured decisions that represent their political constituents’ desires. The sole democratic input into the UK system for selection of its Supreme Court Judges is the Lord Chancellor, who is arguably the most apolitical of British cabinet Ministers (and has typically not been elected at all, being a member of the mostly unelected House of Lords, Britain’s upper chamber).
The argument against politicians participating in judicial appointments is that the judiciary may be political but it ought to act as a check upon the excesses of actions on the part of democratically elected politicians (i.e. to serve as a bastion against the dangers of populism), and hence it is right for the courts to move more slowly than political opinion may vary amidst the vagaries of democratic elections. But life tenure for Judges, that effectively exists in both systems, prescribes precisely this political lethargy. The speed of political change in the US Supreme Court is far slower than for democratically elected politicians by reason of the fact that they do not need to stand for re-election. Hence we achieve the goal of slowing down political winds consistently with having a route for democratic accountability of the judiciary.
The defender of the UK system might try to go further, and say that the judiciary serves as a backstop against the worst excesses of government power. Hence its insular nature is justified by the value of such an uncompromising backstop. The appointment system is entirely outside the vagaries of democratic fluctuations. But there is a caveat here. The lack of political legitimacy may render a country’s Supreme Court more timid in acting as an ostensible backstop. So this consideration, at the very least, cuts both ways.
Ultimately, the distinctive system of appointment of the British Judiciary is the product of historical accident. UK judges are more of an independent power structure than in the United States, as a result of the distinctive role the judiciary played as a power broker in the English Civil War. We are still living with the consequences. But the price for this political independence that the British judiciary enjoys from the vicissitudes of democratic politics is paid in self-imposed moderation. That is the true meaning of British, as opposed, to American, conservatism in the legal sphere. The chaos and agonies of a partisan Justice Kavanaugh confirmation process may be outweighed by the benefits of political transparency that a public procedure adds to the inevitably political angle involved in appointment of Judges to a country’s Supreme Court. If we do not like it, we might consider as an alternative the Russian model.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He has published two books and over 250 articles on the subject. In 2013 he was elected as a Young Global Leader of the World Economic Forum and he has was listed as one of the three hundred most influential people in Switzerland. He is currently a candidate of the United Kingdom of Great Britain and Northern Ireland for appointment to a position of Under Secretary General of the United Nations with an agenda for institutional reform.
The views expressed in this article do not necessarily reflect the views of TransConflict.