—Richard Albert, Boston College Law School
Judges on national courts of last resort are generally appointed in politicized processes. Judicial selection is politicized when the choice rests on popular consent mediated in some way through elected representatives.
We can identify four major models of politicized judicial selection in constitutional states: (1) executive unilateral appointment; (2) shared and unified appointment; and (3) shared but divided appointment; and (4) mixed institutional appointment. Each of these four models of judicial selection is distinguishable.
I outline these four models at a high level of abstraction in order to paint contrasts and to provoke further thought about the approaches constitutional states take to judicial selection.
The first model of politicized judicial selection is executive unilateral appointment. Canada represents this first model. The Canadian prime minister enjoys unobstructed power to appoint whomever she chooses to sit on the Supreme Court. [Supreme Court Act, R.S.C. 1985, c. S-26, § 4(2).] Once appointed by the prime minister—importantly, without the need for confirmation by another public body or branch of government—a Supreme Court justice holds her office until no later than age 75. [Id. at § 9(2).]
In recent years, Canadian judicial selection has undergone a significant change. Whereas it had been the custom for the prime minister to appoint a person of her choice to sit on the Supreme Court and that person would then take her seat, now a newly-appointed Supreme Court justice appears before a parliamentary committee, but only after the appointment has come into force and before she takes her seat on the high court. The parliamentary committee has no power to block or undo the prime minister’s appointment. The new appointee’s appearance before the committee serves instead as an occasion to introduce herself to the nation before she takes on the task of shaping its laws.
In two other models of politicized judicial selection, the appointment power is shared. The appointment power may be shared in one of two ways: in one way, the appointment power is shared insofar as at least two parties must agree on a judicial nomination before it is confirmed; in the other, the appointment power is shared in the sense that multiple actors have the power to make their own judicial appointments to the high court.
The former, which can be described as shared and unified appointment, is illustrated by the United States, where the president holds the power to nominate a high court judge but the Senate must confirm her nomination before it takes effect. [U.S. Const. art. II, § 2.] This appointment power is shared and unified because the power to appoint is shared between the president and the Senate, and their agreement is required for each single appointment.
In contrast, judicial selection may occur by shared but divided appointment. Under this form of judicial selection, the national court of last resort consists of unilateral appointments made by different political or institutional actors. For example, in Germany, half of the Federal Constitutional Court consists of members appointed solely by the Bundestag (the lower house of the national legislature) and the other half is appointed exclusively by the Bundesrat (the upper house). [GG Basic Law, art. 94(1) (F.R.G.).] Once appointed–without confirmation by any other body–a German Constitutional Court justice sits for a non-renewable term of twelve years or until she reaches the age of 68, whichever comes sooner. [Federal Constitutional Court Act, Pt. I, art. 4 (F.R.D.).]
Another example of this third model of shared but divided appointment is France. The French Constitutional Council consists of nine members, three of which are appointed solely by the president, three entirely by the head of the lower house of the national legislature, and the other three exclusively by the chief of the upper house of the national legislature. [Fra. Const. Tit. VII, art. 56. The Constitutional Court also includes all former French Presidents, who hold ex-officio status for life. Id.] Judges sit for a non-renewable term of nine years.
The fourth model of politicized judicial selection may be called mixed institutional appointment. Under this model, the power to choose the persons who will ultimately be appointed belongs in part or in whole to a commission composed of persons representing different public and political institutions. This model of judicial selection diffuses the appointment power. For instance, consider Israel. Although Supreme Court justices in Israel are officially appointed by the president, the justices are actually selected by a Judges’ Election Committee, staffed by nine members: the president of the Supreme Court, two other Supreme Court judges chosen by the Supreme Court, two Cabinet ministers, two members of the national legislature and two lawyers. [Isr. Basic Law: The Judiciary ch. II, 4(a)-(b).] The appointment power appears to be only ceremonially in the hands of the president because in practice the power belongs to the Judges’ Election Committee.
South Africa is another example of this fourth model of mixed institutional appointment. Judges of the South African Constitutional Court are appointed by the president in consultation with the Chief Justice of the Court, but only after making her selection from a list of nominees prepared by the Judicial Service Commission. [S.A. Const. ch. 8, art. 174(4)(a). If for some reason the president chooses to appoint a person whose name does not appear on the list assembled by the Judicial Service Commission, the president must state her reasons why she has departed from the list. Id. at ch. 8, art. 174(4)(b).]
The Judicial Service Commission is in turn made up of a combination of judges, executive and legislative branch officers, lawyers, at least one academic, representatives from the sub-national governments, and other persons whose appointment requires the assent of multiple parties. [Id. at ch. 8, art. 178(1).] The Commission represents a relatively politically and experientially diverse group of individuals.
These four models of politicized judicial selection raise interesting questions of constitutional and institutional design. Which model has proven itself better? How do we define “better”? Which promotes democratic outcomes? Should democratic outcomes be our priority in designing and choosing among models of politicized judicial selection? These are just a few of the many interesting questions that follow from identifying and illustrating different models of judicial selection.
Suggested Citation: Richard Albert, Four Models of Politicized Judicial Selection, Int’l J. Const. L. Blog, April 21, 2013, available at: http://www.iconnectblog.com/2013/04/four-models-of-politicized-judicial-selection.