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Appointing Justices of the Supreme Court

About The Author

Tafadzwa Gidi (Guest Contributor)

Tafadzwa is an LLM student at the University of Portsmouth and works as an Assistant Company Secretary at a London based university. His interests are in law, primarily how it impacts on the governance and activities of corporate organisations. His research interests include studies on effectiveness of board committees.

For those who follow American politics closely, you would have heard some political analysts commentating on the contests for the United States Senate, which is the US’s upper legislative body (similar, in some ways, to the House of Lords in the United Kingdom), ahead of elections taking place this November 2014, stating that the US Supreme Court is in the balance in light of the impact the Senate has upon the US President’s decisions to make appointments to the US Supreme Court.

On this side of the Atlantic, however, the appointment of judges is not related to any electoral campaigns. Instead, applicants must meet specific criteria, and are then subject to the decision of an independent selection commission. This method, it is submitted, is the preferable method of selecting judges for the highest appeal court in the land.

The Appointment of US Supreme Court Judges

In the US, the president nominates Federal Judges. The US Senate has an ‘advise and consent’ role. Legal scholars continue to haggle over what the term ‘advise and consent’ actually means, and an in-depth discussion of the term and what it means is best addressed in a standalone article. Put simply, the Senate has the ability to constrain the authority of the US President on appointments of cabinet members, judges and ambassadors through the advice they provide. Additionally, the US Senate can ratify treaties negotiated by the executive branch through their power of consent. A treaty will require an affirmative vote by two thirds of the Senate in order to be ratified, and Presidential appointments require a simple majority; although there are some caveats to the simple majority rule due to a Senate practice called the ‘filibuster’ (an obstructive tool used by the minority party to require at least 60 affirmative votes instead of a simple majority of fifty plus one).

Comparatively, at the State level, various methods are employed for the appointment of judges, including: appointment by the Governor, as seen in New Jersey; directly elected judges, as seen in West Virginia and Wisconsin; appointment by the legislative body of the state, as seen in Virginia; and also by a nominating committee, as seen in Wyoming. Some States are also known to use a combination of the above methods.

According to the US Supreme Court website, the US ‘Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate’. Although, all current justices have attended law school, the court has had non-law graduates in the past. For example, James F. Byrnes who served as Associate Supreme Court Justice 1941-1942 did not graduate high school and taught himself law before passing the bar.

Appointment of a Justice of the UK Supreme Court 

On 1 October 2009, pursuant to The Constitutional Reform Act 2005, judicial authority was transferred from the House of Lords to the new UK Supreme Court (“UKSC”). Until that time, the House of Lords was the highest appellate court in the land since 1399, although it had evolved over that time

In 1876, the Appellate Jurisdiction Act was passed to regulate how appeals were heard.  It also appointed Lords of Appeal in Ordinary: highly qualified professional judges working full time on the judicial business of the House of Lords.

These appointed Lords of Appeal were commonly referred to as Law Lords. However, since the judicial duties of the House of Lords have moved to the UKSC, the appointed judges are now known as Justices of the Supreme Court. The procedure for appointing a Justice of the Supreme Court of the United Kingdom is governed by ss. 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013.

This procedure involves the Lord Chancellor, by way of letter, convening a selection commission, which is chaired by the President of the Supreme Court. The President of the Supreme Court also nominates a senior judge who is not on the Supreme Court bench to sit on the commission. According to the UK Supreme Court website, the selection commission will additionally include:

[A] member of each of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland, and the Judicial Appointments Commission in Northern Ireland. At least one of those representatives has to be a layperson.

This selection commission then determines the process to be applied for their determination of the appropriate candidate. The final selection is then reported to the Lord Chancellor, who then assumes the responsibility of liaising with the First Minister of Scotland, the First Minister of Wales and the Northern Ireland Judicial Appointments Commission. The selection can then be accepted and the Prime Minister will accordingly be notified. Alternatively, the selection can be rejected, or the selection commission can be asked to reconsider their selection. Therefore, the appointment system is more akin to a normal job interview than an appointment (see the UK Supreme Court website for more information).

In addition to the aforementioned formation of a selection committee, in order to qualify to be a Supreme Court justice in the UK, an individual must have been a judge of the High Court or Court of Appeal for at least two years. Alternatively, he or she must have been a qualifying practitioner for at least fifteen years. As such, unlike the US, the UK system demands that Supreme Court justices be steeped in the practice of the law at the highest level.

Which system is better?

A meritocracy is the best system for judicial appointments. In a series of published papers, the framers of the US constitution laid out their views on what the constitution of the new republic should look like. In ‘Federalist 78’, discussing the power of the judiciary, Alexander Hamilton wrote in an essay, in which he stated:

There can be but few men in society who will have sufficient skill in the laws to qualify for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller who unite the requisite integrity with the requisite knowledge

Thirty-nine US states have elected judges, which seems to run counter to the principle advanced by Hamilton in his essay. Of course, these States would argue that voters are just as capable of making sound judgement on who is qualified to be a judge. Having faith in this system therefore requires the beliefs that:

  1. an average voter has the skills it takes to evaluate what makes a good judge; and
  2. the political process, which can be messy and at times be more about theatre than substance, can sift through the noise to arrive at the right candidate.

Nevertheless, in a system of elected judges, there is the concern that decisions of the court, including those of the Supreme Court, will be politicised. In the US, it is common to view every case before the court and every decision thereof with partisan lenses of left versus right political philosophy. In many high profile cases, you can predict how a justice of the Supreme Court will rule based on the party of the president who appointed them. The biggest and probably most consequential recent ruling is Bush v Gore, which controversially decided the 2000 presidential election by a 5-4 voting split among the justices.

Another recent case that has shown this split is Citizens United v. Federal Election Commission. In a majority opinion written by Justice Anthony Kennedy which held that:

[P]olitical spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections.

This eliminated federal restrictions on maximum spending in politics. While Justice Kennedy is a political conservative, he sometimes votes with the liberal justices making him the swing vote that decides between the four reliably conservative and the four reliably liberal justices.

Most recently, Shelby County v. Holder ruled that s. 4b of the landmark Voting Rights Act 1965 (“the 1965 Act”) was unconstitutional. This decision was similarly a party line vote depending on the Justices’ political leaning. As a result, opinions on the US Supreme Court have become increasingly polarised. S. 4b of the 1965 Act provided that certain named States, or local governments, that had had a history of discriminatory voting restrictions, had to pre-clear any changes to their voting regulations with the US Department of Justice before they could come into effect. The US Supreme Court declared s. 4b of 1965 Act to be unconstitutional on the basis that the 1965 Act was based on out-dated circumstances and violated the ‘equal sovereignty’ doctrine afforded to all states by singling out some states for special monitoring.

It is telling that the most common complaint about UK courts is not that they are leaning left or right based on the Justices’ political beliefs, but rather that judges have relied on the supremacy of EU law, and the European Convention on Human Rights (“ECHR”), to decide cases. The application of the ECHR has proved to be the biggest lightning rod. In fact, the political leanings of the justices are not even public knowledge, let alone a part of the public discussion.

In Secretary of State for the Home Department (Respondent) v AP (Appellant), the UKSC unanimously ruled that the appellant’s human rights had been violated by the Home Office when it imposed a control order forcing AP to live 150 miles away from his family and imposed a sixteen-hour curfew, making it impossible for AP to enjoy contact with his family. Any case that involves the human rights of a terror suspect is always politically toxic and there is considerable pressure for the courts to bow to political pressure and public outcry. This case demonstrates the benefit of having an independent judiciary that is not beholden to any political ideology or political party because justices can be dispassionate in their rulings.

One criticism of the appointments of Justices of the UKSC, however, is that it seems to favour people from the upper echelons of society. The current President of the UKSC, Lord Neuberger, studied at Oxford University and is deputised by Lady Hale who studied at Cambridge. Seventy five percent of the justices went to either Oxford or Cambridge, with over forty percent having gone to Oxford alone. This does not even take into account the privately educated background of a majority of judges in the UK. The UKSC does not represent the society it serves. Access to legal qualifications has long been skewered towards the privileged classes. It will therefore take time, assuming no change is made to the current system of appointment, for the UKSC to be representative of society.

Nevertheless, The UK judicial appointment system inspires more public confidence in those appointed to a country’s highest appellate court by ensuring that the most qualified people are given the responsibility to adjudicate cases. Such an important avenue for justice should not be left to the whims of a majority that are inspired by political motivations, as is frequently seen in the US. Moreover, to ensure that the Supreme Courts on both sides of the pond avoid a real or perceived divorce from society, future judicial appointments must draw candidates from a more diverse, yet equally as qualified, pool.

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Tagged: Constitution, Courts, Supreme Court

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