Judicial Appointments

Judicial Appointments

Vacant Seat

Latin for “vacant seat,” sede vacante is most often used to describe the period when no pope is presiding in Rome. But it might also describe the anticipation of waiting for smoke signals, for example, from U.S. State Governors’s office when a vacancy occurs on the State Supreme Court.

Judicial Appointments

From the article “Judicial Appointments and Judicial Independence”, authored by Tom Ginsburg for US Institute for Peace (January 2009):

“Systems of judicial appointments come in four basic configurations:

  1. appointment by political institutions;
  2. appointment by the judiciary itself;
  3. appointment by a judicial council (which may include non-judge members);
  4. selection through an electoral system.

Countries can also use different systems for different levels of court. A common
configuration for countries in the civil law tradition, which utilizes a bureaucratic model
of the judiciary, is some version of appointment by a judicial council for lower level
judges, with a more political process being used for the supreme or constitutional court.
The US system uses election for some state judges but not at the Federal level. Internal
variation is therefore possible.

We focus on the body with actual power or discretion to select judges. In many
countries, the head of state appoints judges as a formal matter, but nomination or actual
selection is done by another institution, such as the legislature, executive or the judiciary
itself. For example, in Thailand, each judge is appointed by the King, but only after the
candidate has passed a judicial exam run by the courts, and served a one-year term of
apprenticeship. This type of system can be considered one in which the judiciary plays
the primary role, notwithstanding formal appointment by the King.

Appointment by political institutions

There is a wide range of different models -according to the article of Tom Ginsburg-
for political appointment mechanisms. Appointments to constitutional or
supreme courts typically involve either a “representative” mechanism or a
“cooperative” model. Other systems allow a single institution, either parliament
or executive, to make appointments.

1. A representative system is one in which each of several political
institutions will select a certain percentage of the court. For example, in
many Eastern European countries, Italy and in South Korea, the
constitutional court is formed by 1/3 of the members being appointed by
the president, 1/3 by the legislature, and 1/3 by the supreme court. (One
variant has 1/3 appointed by each of two houses of the legislature and 1/3
by the chief executive.) Representative systems are designed to ensure a
mix of different types of professional and political backgrounds on the
court, and to prevent any one institution from dominating. Since only one-
third of the membership is appointed by any one body, each can be
assured that it will be unable to dictate outcomes if each judge acts as a
pure agent. However, it is also possible that judges will be seen as the
agents of those who appointed them. For example, justices appointed by
the parliament might favor the parliament in disputes with the executive.
This system focuses on the collective nature of the court to ensure
independence and accountability.

2. In a cooperative system, two or more institutions must cooperate to
appoint members of the court. Supreme or Constitutional Court Justices in
the US, Brazil and Russia, for example, must be nominated by the
president and approved by a house of the legislature by a majority vote.
Multiple institutions function somewhat like a supermajority, and help to
ensure that judges must have broad support (institutional or political)
before appointment. This system probably leads to more moderate judges,
less likely to act as agents of those who appoint them, because they must
have a supermajority of support. The cooperative system, however, risks
deadlock, since appointment requires the agreement of different
institutions to go forward. It is possible that in circumstances of political
conflict, appointments would not be made at all, and vacancies would
persist.

3. In some systems, a single political institution dominates. The German
Constitutional Court is effectively appointed by the parliament, with each
house of the legislature appointing an equal number of members to the
Constitutional Court. The German system uses supermajority
requirements, so that a 2/3 vote is required. This has led to a norm of
reciprocity that has established de facto permanent seats on the
Constitutional Court held by the major parties. Each of the two largest
parties has an equal number of seats. The norm produces a stable court
that reflects broad political preferences without over- representing either
of the two main factions. This version of the legislative-centered system
is stable because the party system is stable: if the parties were less stable
or if there were numerous small parties rather than a few large ones, the
supermajority requirement might make appointments more difficult or
even impossible.

4. Finally, in some cases (formerly the United Kingdom and several other
common law jurisdictions) judges are appointed by a government minister
(typically the Minister of Justice or Attorney General). Even though by
convention the judges appointed under this system were not seen as
explicitly political, there was a good deal of criticism in the United
Kingdom that the judiciary did not adequately reflect the diversity of the
society, with women and minorities highly under-represented. This
system was recently replaced with a variant on a judicial council.

5. In short, political appointment systems lean toward accountability rather
than independence. They have the virtue of ensuring political support for
the judges, but risk politicization. Finally, the degree of
representativeness of the judiciary in these models seems to increase with
the number of political actors involved in the appointment process. Where
one institution has the exclusive role (as the executive formally had in the
United Kingdom) diversity suffers. Supermajority requirements and
cooperative systems involving multiple institutions, on the other hand,
tend to lead toward moderation and more diversity, but can take longer to
make appointments or result in gridlock.

Judicial Self-Appointment

Note: For more information about this topic, see a full description in this Encyclopedia about Judicial self-appointment.

Judicial councils

Note: For more information about this topic, see a full description in this Encyclopedia about Judicial councils.

Judicial Elections

Note: For more information about this topic, see a full description in this Encyclopedia about Judicial Elections.

Resources

See Also

Judicial Independence
Judicial Review
Judicial Training
Checks And Balances In The World
Judicial and legislative dialogue
Judicial Systems
Chief Justice
Courts Developments
Constitutional Law Cases
International judicial institutions
Removing Judges
Disciplining Judges


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