Judicial Councils

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

“Judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability. Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline. Perhaps because they promise a happy medium
between these extremes, judicial councils are very popular and roughly 60% of countries have adopted them in some form, including Iraq (in the Iraqi Higher Judicial Council).

1. There are a wide variety of models of councils, in which the composition and competences reflect the concern about the judiciary in a specific context, balancing between demands for accountability and independence. In their initial design in France and Italy, judicial councils were designed to enhance independence after periods of undemocratic rule by removing judicial management from partisan politics. In other cases, such as Brazil in the 1970s, judicial councils have been established to reduce the level of independence. Most American states use a type of judicial council called a “merit commission,” which is a mixed body to nominate judges for
appointment by politicians, and were created in reaction to systems of
partisan judicial elections.

2. Some councils have only limited competences, with power to manage budgets and material resources of courts. Others have a role in performance evaluation, promotion and discipline, as well as appointments. The American state merit commissions only nominate judges.

3. Members of judicial councils can include judges from various levels of courts, members of other government bodies such as the ministry of justice, members of the bar association, and laymen. Roughly 15% of judicial councils around the world are composed entirely of judges; about 10% have no judges. The remainder have some mix of judges and nonjudges, with the average fraction of judges being just under half.

4. Many believe that it is crucial that judges form the majority of the council so as to ensure maximum judicial independence. Although the empirical evidence on this point is limited, the judicial council system in principle seems superior to the simpler system of judicial self-appointment (…), in that it allows broader representation, including judges of lower level courts, to be included in the Council and also allows a little more transparency. Judicial councils with non-judicial members also insulate judges from accusations of self-dealing.

5. Judicial council roles in judicial appointments vary. In some systems the council makes the appointment itself. More commonly (as in the case of Iraq), the council nominates a candidate for formal appointment by a political body. American merit commissions usually provide a list of three candidates for each vacancy for the state governor to choose from. This still gives the council much power: because the council can control the list
of three, it can sometimes bundle a strong candidate with two weak ones
to increase the likelihood that a favored candidate will be appointed. In
order to select judges for recommendation or appointment, councils may
have a role in administering judicial examinations or interviewing
candidates.

More about Judicial Appointments

Judicial Self-Appointment

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

Judicial Appointments

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

Judicial Elections

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

Resources

See Also

Judicial self-appointment
Judicial councils
Judicial Independence
Judicial Elections
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