Appointing judges the European way.

AuthorVolcansek, Mary L.
PositionRethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges
  1. INTRODUCTION

    American politicians deride an undefined "judicial activism," but political scientists study a more precise phenomenon that reflects the growing expansion of judicial power, the "judicialization of politics." (1) Judicialization occurs in either of two fashions: the judiciary expands its power into new arenas, at the expense of politicians and administrators, or progressively more political activities outside the judicial realm assume judicial-like qualities. (2) Either strand of judicialization conflicts with notions that courts and judges should be apolitical, but as Hans Kelsen pointed out in 1926, judges can never simply declare the law or enunciate the legislators' will; every judicial decision is a choice among competing values. (3) Judges exercise political power not just in the annulment of a legislative act, but also in every courtroom where a criminal case is heard, a divorce granted, a piece of property seized, custody awarded, a written treatise protected, or damages ordered. In every case some societal value is favored over another, and the essence of politics consists in authoritatively allocating values for society. (4)

    Who are these judges and how did they attain their powerful positions? That question is asked, not only in the United States, but also in democracies around the world. To fully understand the process for selecting judges, one needs to look beyond the simple act of appointment and consider a larger phenomenon that is referred to by political scientists as recruitment. Recruitment flows in three stages: certification, selection, and assignment.

    The first phase, certification, derives from a person's status in the structure of political opportunity, his opportunity costs, and political socialization. The second phase, selection, involves the interaction among aspirants, candidates, sponsors, and the selecting body. The final phase, role assignment, chooses the candidate and legitimizes his assumption of the office. (5)

    The process operates like a funnel; more and more people are excluded from consideration at each stage until one is named. Thus, judicial selection encompasses more than just the point of selection and involves consideration of who was able to meet the minimum eligibility requirements and ultimately win out over others in competition. Obstacles to achieving the legal degree, obtaining the right experiences, or meeting the best political power brokers are all elements of judicial recruitment, as well as how the final selection is made. If one falters at any of the steps preceding the final point of selection, there is no possibility of obtaining the office.

    The many configurations of judicial selection systems in the United States and elsewhere all aim to put the best people in the courtroom, but how do we know who would make the "best" judge? Characteristics that most would name are "personal integrity, intelligence, legal ability and judicial temperament," (6) but all are difficult to recognize and even harder to measure and compare. Hence, a variety of mechanisms have been developed in the quest to find a way to recruit and appoint the "best" judges. (7)

    Different goals drive various selection systems. All seek to name meritorious judges or, at the very least, legally competent and honest ones. The decision as to whether the meritorious judges should be accountable or independent determines, therefore, the choice of selection method, and neither value compromises the quest for meritorious judges, at least theoretically. Of course, recognizing meritorious judges when we see them poses the same dilemma as attempting to find and define the best judges.

    The American states have devised a variety of mechanisms that attempt to achieve all three goals, even though reconciling independence with accountability may be akin to squaring a circle. Europeans seem to know which value trumps the other, and that value is judicial independence. Even as a new mechanism for appointing judges in England and Wales was implemented in 2006, (8) the Lord Chancellor spoke of his commitment to "the principle of judicial independence" and noted that "the confidence of both the public and legal profession in an independent judiciary [is] essential." (9) The preference for independence over accountability assumes that if the right people are named to the bench, then accountability should not be a concern. Indeed, accountability mechanisms can undermine genuine independence, because judges should be able to "decide cases impartially as between the parties--without being affected by 'fear or favour."' (10) Moreover, should judges fail in some egregious manner to perform their duties as expected, all systems include some mechanism for disciplining or removing the few errant jurists. (11)

    Judicial independence and judicial impartiality are, in some ways, flip sides of the same coin; neither can survive without the other. The twin concepts have been defined as having "some degree of freedom from one or more competing branches of government or from the centers of private power." (12) The more specific components of judicial independence involve the belief that judges can decide on their own, even in conflict with what others, political or judicial, may wish, particularly if a potential for retribution, either personally or institutionally, exists. (13) "Judicial independence is not a simple absolute, either present or absent." (14) Between the poles of total insularity and significant bias and interference lie an almost infinite number of points. Even so, "the chief characteristic distinguishing the courts from the political institutions is judicial independence: independence from government and from political leadership, independence from political parties and the latest political fashion, independence from popular feelings." (15)

    Judicial accountability implies the converse. Indeed, a basic tenet of democratic theory holds that "rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and cooperation of their elected representatives." (16) If judicial officers make political decisions and are, as the argument goes, counted among the rulers, they should not be independent from government, from political fashions, or from popular sentiments. Judges' professional training and attitudes require, however, that they hear "every argument, however curious, and to balance different arguments against each other," (17) and that cannot happen if a judge weighs the potential political consequences of a decision. Furthermore, democracy can only work as it should if independent judges can act to protect against distortions of democratic processes. (18)

    Looking abroad for examples to inform the American legal system is out of fashion, and that holds particularly true for foreign legal artifacts. The reluctance, even of scholars, to tackle the daunting task of exploring foreign legal systems has been explained by the suggestion that "legal systems and courts may be the most system specific" (19) of any political institutions, making achievement of desired levels of generalization difficult. Another explanation may be the rather enduring insistence on American exceptionalism, that notion that the United States is pervasively distinct and certainly exceptional when compared to other nations. (20) Interestingly, however, the United States liberally borrowed and modified many British institutions, most notably the system of appointing judges for life at the federal level. The notion of service at the king's pleasure or, as we adapted it, for "good behavior," was the sole model for judicial appointment until the 1830s when Jacksonian democracy ushered in an elective process for naming judges in some states. (21) Despite the disinclination to seek out alternative modes for naming judges as employed in other places, sometimes taking a comparative view helps us to see our own system more clearly or, as philosophers have long taught us, "knowledge of the self is gained through knowledge of others." (22)

    Indeed, other nations have frequently looked to the American system for proto-typical institutions, and the American invention of judicial review has been imitated around the world, particularly in countries with a federal form of government. (23) The American systems for selecting judges, with the notable exception of the elective one, have served as examples, both positive and negative, to other parts of the world, particularly in the post-World War II era. (24) Most recently, the Judicial Appointments Commission for naming judges to courts in England and Wales that came into force in April 2006, looks remarkably similar to the merit selection processes used in some American states. (25) This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States.

  2. JUDICIAL SELECTION IN EUROPE

    The selection of judges clearly marks the point where politics and courts most visibly intersect. Those writing constitutions outside of the United States have recognized that fact. When the Italian Constituent Assembly met in 1946 to write the post-Fascist constitution, it permitted selection of judges for the Constitutional Court to be political, positing that political appointment would be balanced by fixed term limits. (26) "[Fixed term limits are] not due to a rejection in [Germany, Italy, and Spain] of the concept of judicial independence, but rather to the ... belief that fixed terms ... grant adequate independence while life-tenure would promote irresponsibility, by propitiating that an individual's constitutional views become engrafted for too long unto the basic document." (27) Similarly, the Portuguese voiced concerns for balancing the political ideologies of the judges who would sit on the Constitutional Tribunal when...

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