The Supreme Court and the push for transparency in lower court appointments in Japan.

• Author: Foote, Daniel H.
• Position: Symposium: Decision Making on the Japanese Supreme Court

The theme of this symposium issue is "Decision Making on the Japanese Supreme Court." From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration. (1) One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan's career judiciary). (2) The Supreme Court's role in the lower court appointment process, and recent reforms designed to heighten transparency in that process, are the topics of this essay.

The basic outline of the lower court appointment process is widely known. Yet the actual operation of that process has been shrouded in secrecy. Based largely on analysis of the structure and organization of the Japanese judiciary, coupled with anecdotal evidence, for many years critics have charged the Supreme Court with stifling judicial independence by utilizing its control of the appointment process and personnel management in a politically motivated fashion or to compel adherence to certain norms. (3) The Supreme Court, however, steadfastly has refused to divulge specific reasons for decisions on appointments or personnel management. In the absence of any such concrete information, the debate over judicial independence seemed destined to proceed endlessly, with charges based heavily on anecdotal evidence met by virtually complete silence.

Then, by the early 1990s, J. Mark Ramseyer and Eric Rasmusen devised an ingenious strategy for testing the assertions statistically. They compiled an extensive database--initially for the cohort of all judges appointed during the decade of the 1960s--containing, among other matters: age, gender, university education and other demographic information; information on productivity and participation in reported judgments for various types of cases; and information on positions held throughout the course of their careers in the judiciary. (4) Then, using regression analysis, they sought to identify which factors displayed statistically significant correlations with more successful and less successful careers (defined in accordance with pay scales and other widely accepted notions of what positions within the Japanese career judiciary are more or less desirable). (5) Over the years, Ramseyer and his collaborators (usually Rasmusen and, at times, Frances Rosenbluth, with additional works by Ramseyer on his own) have expanded greatly the cohort of judges covered and types of data collected and examined, have refined their analysis, and, in a book (6) and numerous articles in English and in Japanese, have investigated an ever-widening set of topics. (7)

Ramseyer' s article in this issue, Do School Cliques Dominate Japanese Bureaucracies?: Evidence from Supreme Court Appointments, takes the analysis one step further, by examining whether school cliques and favoritism toward the graduates of elite universities--namely, the University of Tokyo and Kyoto University--explain why judges who graduated from those universities dominate in appointments to the Supreme Court. Having served as professor at the University of Tokyo for over ten years, I am gratified to see the results of this latest investigation. Most of my students, especially those who pass the bar exam at a young age, are intelligent, committed, and hard working. Of course, I would like to think the education the University of Tokyo provides has something to do with their success. But the top University of Tokyo students are blessed with natural ability and a strong level of dedication. So, while I have a number of caveats and concerns with regard to Ramseyer's analysis, I'm more than inclined to be persuaded by his conclusion: "[There is] no evidence of favoritism toward the graduates of the preeminent University of Tokyo. Elite university graduates do not dominate Supreme Court appointments because of their school backgrounds. They dominate because they produce." (8) I'm happy to see him offer empirical confirmation for that conclusion.

Over the years, Ramseyer and his collaborators have expended vast amounts of time and energy compiling and analyzing data. Their work would be a valuable resource even if more concrete information were available regarding specific appointment and personnel decisions. Yet, if the Supreme Court had been more forthcoming with concrete information, it is hard to imagine they would have felt the need to invest so much time and energy in this project. In that sense, the very existence of their research serves as a reminder of the lack of transparency in the judicial appointment process.

Not surprisingly, the response of the Japanese Supreme Court to the work of Ramseyer and his collaborators has been essentially the same as its response to other critiques of the appointment and personnel management process for lower court judges: silence. While a few individual judges have expressed their views to Ramseyer in private, (9) the Supreme Court has not commented publicly. To the contrary, the Supreme Court has maintained its steadfast policy of near total secrecy with regard to appointments and personnel matters.

As Repeta observed in his oral presentation at the symposium, however, "[I]n recent years, increased transparency has been a constant theme of reform demands for all aspects of government in Japan." (10) The judicial appointment process is no exception. In 1999, the government of Japan established the Justice System Reform Council ("Reform Council"), a body of thirteen knowledgeable members from a wide range of fields, charged with "clarifying the role to be played by justice in Japanese society ... and examining and deliberating fundamental measures necessary for the realization" of a justice system appropriate for the needs of Japanese society. (11) The Reform Council issued its final recommendations in June 2001. (12) A central theme of those recommendations was the need for greater transparency throughout the justice system. With reference to appointments to the Supreme Court, the Reform Council observed, in a bit of an understatement, that "the processes for nomination by the Cabinet and for appointment are not necessarily transparent." (13) The Reform Council stopped short of offering any concrete recommendations for reforming the Supreme Court appointment process, though, stating only that:

[F]rom the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on appropriate mechanisms for the purpose of securing transparency and objectivity with regard to the appointment process, while paying due respect to the importance of the position [of Supreme Court justice]. (14) As discussed below, the Reform Council offered much more explicit recommendations with respect to reforming the appointment process for lower court judges, and the Supreme Court acted on those recommendations rather expeditiously. Before examining the reforms and evaluating their impact, however, a brief explanation is in order of the lower court judicial appointment process as it existed previously.

OVERVIEW OF THE APPOINTMENT PROCESS FOR LOWER COURT JUDGES (15)

In Japan's career judiciary, the vast majority of judges (16) commence their judicial careers with appointment to ten-year terms as assistant judges, immediately upon completion of training at the Legal Training and Research Institute (LTRI). (17) Each year, a new cohort of assistant judges is appointed. Between 1970 and 2002 (after which the reforms discussed below began), the number of newly appointed assistant judges ranged from a low of 57 to a high of 112. (18) Under the Constitution of Japan, lower court judges must stand for reappointment every ten years. (19) The great majority of judges seek reappointment, but some decline to do so or resign from the judiciary; and at least some of those who have left the judiciary evidently have done so after being advised they might face difficulty securing reappointment. (20) Until recently, however, virtually all those who elected to remain in the judiciary have been reappointed for successive ten-year terms, up until mandatory retirement at age 65. (21)

Pursuant to the Constitution of Japan, which was adopted in 1947, "[t]he judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court." (22) This provision was shaped by the Constitution drafting committee of the General Headquarters of the Supreme Commander for the Allied Powers (GHQ) and bore a strong U.S. influence. (23) The drafters evidently viewed this provision as ensuring judicial independence by granting to the Supreme Court primary authority to prepare the list of candidates, while at the same time ensuring political input into the selection process by entrusting ultimate authority for appointment to the Cabinet and by requiring lower court judges to stand for reappointment every ten years. (24)

Prior drafts of the above provision would have ensured an even greater role for the Cabinet in selecting judges. According to one early draft, the government would choose judges from a list of at least four candidates for every vacancy, at least two of whom would be nominated by the Supreme Court and two more nominated in a manner designated by the Diet. (25) According to a somewhat later draft (the draft the GHQ initially submitted to the Japanese government), the Cabinet would choose judges from a list of at least two candidates for every vacancy, with those candidates to be nominated by the Supreme Court. (26) Thus, the GHQ evidently envisioned a procedure similar to the so-called Missouri Plan...