The variety of methods used for selecting judges in different countries reflects the different approaches adopted to determine the role of the judiciary in each particular system of government. The use of direct elections in the United States at the state level, for example, is an indication of the fact that judges in the United States are viewed as powerful agents of the state in a system of government that has a strong historical commitment to direct elections at state level. More commonly in democratic systems, particularly those based on an Anglo-U.S. common law system, the democratic input is less direct, leaving the choice of judge to the executive, with or without the involvement of a judicial appointments commission of some form.
Judicial appointment by a government minister is intended to ensure a degree of political accountability in the process while removing the danger that judicial independence might be undermined if judges are required to campaign and win majority public support in a direct election. In most civil law systems, on the other hand, in which judges have traditionally been seen less as a branch of government than a part of the civil service, the judiciary is normally recruited from among law graduates who complete an examination-based judicial training course.
Thus a variety of approaches to the role of the judiciary in the governmental system has led to wide differences in selection methods even among states that can broadly be termed liberal democracies. A common factor present in these different systems is that—with the notable exception of the United States—the way in which judges are chosen has traditionally been regarded as relatively uncontroversial compared to the appointment of legislators or the executive. However, as the role of judges has grown around the world, particularly in the highest appellate and constitutional courts, debate about judicial selection has intensified, and many countries have introduced significant changes in the way they choose their judges. These reforms have been intended to address concerns about the independence, accountability, and composition of judiciaries in the light of their expanding roles.
independence and accountability
It is widely accepted that a good judicial selection system promotes and protects judicial independence. The link between judicial independence and judicial appointments is a recurring theme in the growing body of international treaties and declarations on judicial independence. These documents stress the need to prioritize freedom from executive pressure in the appointments process to ensure that judicial impartiality in decision making is maintained.
Yet in practice most judicial selection systems do involve the executive in some way. Even in the United States, where the constitutional separation of the functions of the legislature, executive, and judiciary is relatively strict, the federal judiciary is appointed by the president, and governors are often involved in the appointment of state judges. Critics of this type of system argue that when judges owe their office to a politician, there is an inevitable threat to the impartiality of their decision making.
However, whether this is the case in practice depends on a number of other factors, such as the culture of independence in the legal profession, the status of the judiciary in the particular society, and the nature of the judges' tenure arrangements. If judges have security of tenure and do not look to the executive for reappointment, they are not under pressure to curry favor through their decision making. As a result, even in countries in which appointments are made that are overtly political, those chosen may, in practice, disappoint the expectations of the politicians who appoint them. U.S. President Dwight D. Eisenhower (1890–1969), for example, claimed that the appointment of Earl Warren (1891–1974) to the U.S. Supreme Court was the worst mistake of his presidency because once appointed, Justice Warren was responsible for a number of notably liberal judicial decisions. Once appointed, the judicial culture of independence can be stronger than the previous political allegiances.
Despite examples of judicial independence surviving the politicization of the appointments process, there is a justified concern that executive-appointed judges may be improperly influenced in their decision making. The explanation for the widespread involvement of the executive in judicial selection, despite the potential threat that it poses to judicial independence, is found in the competing demands of democratic accountability. If judges are required to exercise their discretion in interpreting the law in ways that have political and policy implications, then a strong argument exists for representative election. In the light of the global expansion in judicial power, the tension between these two competing principles of judicial independence and accountability is a dominant, probably irresolvable, and arguably healthy feature of most judicial selection processes.
One example of this tension is the controversial question of whether the views of judges should be scrutinized in public on appointment either by a judicial appointment commission or legislative committee. The argument for some sort of pre- or postappointment scrutiny grows stronger the greater the role of the judges. Supporters of scrutiny argue that the belief that judges can interpret constitutional principles or human rights with absolute political neutrality is a myth and that those who select the judges, as well as the public at large, have a right to know something about the views and values of the judges who will be making decisions of profound political significance. Critics of this form of scrutiny, in contrast, argue that questioning judges about their politics undermines their independence and brings the judiciary into disrepute. The U.S. Senate confirmation hearings of federal judicial appointments are widely condemned in many countries for this reason—although it is arguable that the reputation of the U.S. confirmation process has been unfairly tarnished by a few high-profile failures and that not all such hearings need become unacceptably politicized. The public interviews that are carried out by the Judicial Service Commission in South Africa, for example, have generally been credited with introducing greater openness and accountability to the selection process without undermining the privacy or independence of the judges.
composition and diversity
Another growing concern in many judicial selection processes is the awareness of the need for greater diversity in the composition of judiciaries. In common with all public institutions of power, the need for a degree of diversity is increasingly recognized as a prerequisite to securing public confidence and legitimacy. Two generalizations can be made about the composition of judiciaries around the world. First, the more activist the judiciary, the less representative in terms of gender, ethnicity, and social background of the community as a whole it tends to be. Second, the higher the rank of the judiciary, the less representative that rank will be. Women and members of minority ethnic groups tend to feature in greater numbers in those judicial systems in which judges have less power and prestige. In France, for example, where women make up nearly half the judiciary, judges are regarded as civil servants rather than a branch of the government and do not generally enjoy the equivalent status of many common law judges. Moreover, it is notable that even in France the ratio of men to women changes at the higher, more powerful ranks, where men outnumber women two to one.
It is increasingly common for judicial selection criteria to reflect concern about the need for greater diversity by stating that appointments will be made based on qualifications and regardless of such factors as ethnic origin, gender, marital status, sexual orientation, political affiliation, religion, or disability. In some countries, however, the need for greater diversity has been recognized as requiring a positive inclusion into the selection criteria. In Canada, for example, the broad statutory criteria applied by the Ontario Judicial Appointments Advisory Committee in selecting judges are spelled out in the 1990 Courts of Justice Act and include "assessment of the professional excellence, community awareness, and personal characteristics of candidates and recognition of the desirability of reflecting the diversity of Ontario society in judicial appointments" (Chapter 43, Section 9).
Similarly, in South Africa, the constitution states that judicial appointments must be made taking into account "the need for the judiciary to reflect broadly the racial and gender composition of South Africa" (Section 174). Although there is a widespread consensus that increasing diversity in the judiciary is inherently positive, it is also acknowledged that there are real problems in reconciling the goal of appointing a more representative judiciary with the principle of judicial impartiality. If judges are to decide each case without "fear or favor," as most judicial oaths require, they cannot be selected as representatives of any particular group in the same way as a member of a legislator can be.
In recognition of this difficulty, an alternative approach to the question of the composition of the judiciary is gaining popularity in many jurisdictions. This replaces the concept of representativeness with the doctrine of "fair reflection." This more flexible principle holds that the judiciary should reflect through its composition the interests of the community that it serves. It moves away from the effect of the particular backgrounds of individual judges on particular decisions toward a broader approach that seeks to link the judiciary as a group to the society in which it operates. In so doing, it reduces the danger posed to the principle of individual impartiality.
The Code of Conduct for United States judges notes that a judge's integrity and independence are entirely dependent on whether a judge acts without "fear or favor."
judicial appointments commissions
The growing pressure around the world to ensure the selection of more diverse judiciaries and to strike a better balance between judicial independence and accountability has led to substantive reform of many selection processes. One of the most common changes has been the move to establish a judicial appointments commission. In North America the use of commissions increased significantly in the late twentieth century so that thirty-three states and the District of Columbia created some form of commission. These are often termed "merit plans" because they are intended to remove politics from the appointment process and replace it by appointment on merit alone. In Canada, appointment committees have grown in popularity since they were first introduced in the 1980s. Likewise, many African systems also now use commissions. The best known and highly regarded is the Judicial Service Commission set up in South Africa in 1994 under the new post-apartheid constitution. In the United Kingdom all three jurisdictions have recently moved to a commission-based system, and debate has grown on the desirability of such reform in India, Australia, and New Zealand.
These developments are not limited to the common law world; a similar trend occurred in European civil law countries in the early years of the twenty-first century. Although these countries employ a formalized judicial career structure, a growing number have introduced commissions in the form of higher judicial councils to appoint and promote judges. These have been identified as both a consequence and a cause of increasing judicial power.
As more commissions are established around the world, the variety of models grows. Each system adopts a form of commission that suits its own legal and political culture. Some have complete control over the judicial selection process, whereas others are recommending bodies that put forward the names of suitable candidate to the executive. The extent of executive influence in the system ranges from extensive discretion to select from a long list of names to that of rubber-stamping the commission's choice of candidate.
In addition, there are many variations of commission and different types of selection processes for different ranks of judges. In South Africa, for example, a distinction is drawn between the procedure for appointing constitutional judges and ordinary judges of the High Court and Court of Appeal. For the latter, the Judicial Service Commission advises the president of its choice of candidate, who is required to appoint the Commission's choice. However, in relation to the Constitutional Court, the Commission submits a list of nominees, which must include three names more than the number of judges to be appointed. The president then makes a selection from this list. The president may also reject, with reasons, unacceptable candidates and require supplemental ones, although this has never occurred.
In almost all U.S. states in which commissions are used, the appointing authority (usually the governor) is obliged to choose one of the commission's nominees, although not necessarily the first on the list. The Judicial Appointments Advisory Committee in Ontario similarly provides the attorney general with a ranked shortlist of at least two recommended candidates with accompanying reasons for its decision. The attorney general must appoint a candidate on the list, although as in South Africa the entire list can be rejected and a new one requested.
It is often claimed that the makeup of a commission is a determining factor in its effectiveness. Who the members are, how long they serve, and, equally important, who appoints them are relevant because they have a bearing on the degree of independence and accountability of the commission. Just as the independence of judges is affected by their appointment and tenure arrangements, so too is that of the people who appoint the judges. Here as well, the details differ significantly from one commission to another.
The makeup of the commissions is partly dependent on their size, which ranges from twenty-three members in South Africa to as few as five in many U.S. states. Most commissions include a diversity of members including lay people, lawyers, judges, academics, and, sometimes, elected politicians. Commissions that have gained strong reputations as independent and effective bodies tend to be those that have a high degree of diversity among their members who do not see themselves as having been appointed as representatives of an interest group, but who are first and foremost committed to the collective goal of appointing the highest quality judges from the widest possible range of backgrounds. The lesson that should be learned from the experiences of commissions is that the independence of the commission (both cultural and structural) and the diversity of its membership are the keys to ensuring that appointment commissions select high quality judges and command confidence in the selection process.
Malleson, Kate. "Creating a Judicial Appointments Commission: Which Model Works Best?" Public Law (Spring 2004):102–121.
"Special Issue on Judicial Appointments." Alberta Law Review 38, no. 3 (November 2000).