English reforms to judicial selection: comparative lessons for American states?

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

    It is often said that Britain (1) and America are two nations divided by a common language. (2) Although the American common law system was derived from England, many fundamental differences exist between the American and English legal systems and governmental frameworks. In contrast to the American-style legislative process, extensive formal consultations take place in Britain before government submits a bill for action to Parliament. Historically, no clear separation of powers existed in the complex relationships between Parliament and Government (the elected executive branch) headed by the Prime Minister, and the judiciary, until quite recently headed by the Lord Chancellor, a Prime Minister appointee. (3) For the last 700 years, the power to appoint judges was vested in the Lord Chancellor. (4) While the discourse continues, monumental changes are underway as part of constitutional reform. In time, these pending reforms will likely produce a greater symmetry between Britain, America, and other modern democracies. (5)

    On June 12, 2003, without prior public consultation, Prime Minister Tony Blair shocked the legal community by announcing plans to implement sweeping reforms to the British legal system, creating a new Department for Constitutional Affairs ("DCA"), headed by Secretary of State Lord Falconer, and also naming Falconer as interim Lord Chancellor until that position could be abolished. (6) Government introduced the Constitutional Reform Bill to the House of Lords in February 2004. (7) Following extensive debate and revisions, the bill was adopted by both houses of Parliament and received the Royal Assent on March 24, 2005. (8) Transfer of judicial appointments to an independent, non-governmental entity began on April 3, 2006. (9) Effective July 4, 2006, an elected speaker of the house took office in place of the Lord Chancellor. (10) The Lord Chief Justice has assumed the head of the judiciary. (11) In barely three years, Britain reformed its long-standing legal structure, providing for clearer separation of powers between the judiciary, Parliament, and the elected government's executive branch (12)--truly, a remarkable achievement.

    Historically, British judges were selected by the powerful Lord Chancellor, using stringent (but sometimes unstated) eligibility criteria and "secret soundings"--a process of anonymous consultation with unnamed sitting judges. (13) Once a person was appointed a full-time judge, rules prohibited return to private practice. (14) As a practical matter, these forces produced an English judiciary consisting almost exclusively of older white males drawn from the highest ranks of senior barristers--the most elite branch of the English legal profession. (15) Many in the public perceived the judiciary as socially biased and out-of-touch. (16) Some scholars suggest that "[t]he absence of elected judges lends a consistency to the English judiciary which does not exist in the United States, where the selection practice varies from one state to another, and even within a particular state with respect to different levels of the judiciary." (17)

    Judges were drawn only from the ranks of barristers, who until recently had exclusive rights of audience to participate in courts as advocates. Solicitors and other legal professionals have incrementally been granted rights of audience, starting with the lowest level of courts. Upon establishing proper qualifications, individual solicitors can serve as advocates in the highest courts. Although the most rigid distinctions between the two branches have diminished, formal distinctions relating to advocacy stature and court dress remain. (18) The Constitutional Reform Act 2005 ("the Act") may be the "single most fundamental and radical change ... in over three hundred years." (19) The Act transferred the Lord Chancellor's judicial functions to the Lord Chief Justice, who serves as the President of the Courts of England and Wales; reaffirms the principle of judicial independence; and establishes a Supreme Court of the United Kingdom. (20) Most important for this Article, the Act also creates both an independent body charged with judicial selection and an omsbudsman to handle complaints about the appointments process. (21) While many of the details have yet to be determined, the process of judicial selection is undergoing massive change. Through extended consultations about the selection process, a consensus is emerging that would eliminate some of the historically rigid selection criteria and use modern personnel practices to announce and fill judicial posts. (22) On April 3, 2006, responsibility for filling most judicial posts was transferred from the Lord Chancellor to an independent Judicial Appointments Commission ("the JAC"), independent of political patronage, charged with basing judicial selection "solely on merit." (23) Because of the extended discussions resulting in general consensus on the reforms, there is good reason to hope that the Commission will enhance judicial independence and public confidence in the legal system, improve the quality of selections, and diversify the English bench to better reflect the population at large. (24)

    Are the pending English changes instructive to those in America who would like to create and implement an "ideal" appointive system for selecting state court judges? In so many ways, the English and American legal systems differ vastly. Two major differences stand out with regard to judicial selection: judicial role in political disputes and demographics of the bench.

    Until quite recently, English judges seldom decided cases with obvious political implications. (25) Parliamentary sovereignty gave ultimate authority to the legislative branch, which was largely unfettered by binding judicial review. American state and federal courts, by contrast, have consistently played a central role in deciding hotly-contested political disputes since Marbury v. Madison. (26) The power of final judicial review is firmly ensconced in the United States Supreme Court on federal issues, and in the respective state supreme courts on non-federal issues. (27) The central role of American courts in the political landscape virtually ensures that partisan politics figure prominently in judicial selection. Despite many other criticisms of the English selection system, the Lord Chancellor's selection process has not been fraught with the partisanship plaguing the American system.

    Demographic composition of the judiciary is the other primary distinguishing factor between the two countries. Regardless of the method used to select American state and federal judges, gender, race, and ethnicity have been at least somewhat of a factor for the last thirty years. (28) Despite significant variations among states, gubernatorial administrations, and presidential administrations, American courts are light years ahead of British courts in terms of demographic representativeness. (29) That is not to say that American courts are sufficiently diverse, or that numerical nosecounts on demographics ensure representativeness of the courts. Rather, the contrast illustrates that the composition of the English bench is woefully unrepresentative of the nation's population.

    Notwithstanding these differences, the advent of England's Commission heralds a new era, implementing modernized personnel appointment methods while ensuring transparency, democratic accountability, and political independence. (30) Kate Malleson, the leading commentator on English judicial selection, states:

    If the quality of the appointments process can be made to match that of the judges appointed, the commission in England and Wales will rebuild public confidence in the judicial appointments process and may become a model for other systems looking to reform the way in which they select their judges. (31) Besides constitutional reforms, other sweeping changes to the English legal professions are in process. While any change to hidebound traditions takes much time and debate, momentous changes appear likely, including overhaul of the legal professions' regulatory structure and repeal of ethical rules that impede competition. Current legislative proposals would permit legal disciplinary partnerships (a variant of multidisciplinary partnerships) and law firm ownership by non-lawyers. (32) Other ancient traditions might become relics of history. Lord Falconer is considering whether to do away with formal court dress--with wigs and gowns distinguishing barristers (and their most elite, Queen's Counsel) from those in the lower branch of solicitors who have gained rights of audience in court. (33) Even the Lord Chancellor's ceremonial garb may discontinue the use of lady's tights. (34)

    To the American observer, the British legal system appears complex and hard to decipher. British legislation is structured and phrased quite differently from state and federal statutes in the United States. Written in true "English," legislation reflects British political context historically and as it is currently evolving. This Article is part of an ongoing series on major evolving changes in the British legal system; namely, to modernize, to promote democratic values, to enhance competition, and to provide access to legal services. (35) This Article aims to translate and explain the new reforms to British judicial selection and to identify modernization efforts being implemented there that might be adapted for use by American states seeking to reform their selection systems. Because the British legal system is immensely complicated to foreign observers, this work aims to describe, in terms comprehensible to American readers, the problems inherent in the old system and the structural framework for the new system, which went into effect in April 2006. Since the Commission is in its infancy and just beginning to take over primary authority to select judges from the Lord...

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