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Judges and confirmation hearings

The possibility of confirmation hearings for Supreme Court judges has appeared twice in the news in the last couple of days. First is the Policy Exchange report, Bringing Rights Back Home by Professor Michael Pinto-Duschinsky. The report focuses on the impact of the European Convention on UK law. Towards the end of the report, Prof Pinto-Duschinsky argues that as judges have an increasing impact on political affairs, political actors should have greater say in the appointment of judges, and then calls for legislative oversight of those appointments:

[…] as the UK Supreme Court begins to adjust to its new role as the apex of judicial power, a more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to parliamentary scrutiny prior to their appointment. […]

The United States system of separation of powers between the three main branches of government combined with checks and balances has a solid logic. It allows sitting judges to carry out their work without fear or favour. But it also ensures that, if the approach of the Supreme Court is consistently out of line with prevailing public opinion, an elected chief executive will nominate members of an elected legislature who will confirm new judges more in line with the wishes of the electors when vacancies on the court occur.

[…] It has been a firm tradition that members of Parliament must respect judicial decisions and must not even criticise them. However, the reality is that the judges themselves have become far less inhibited about making politically-loaded statements, both in delivering their judgements in courts of law and in lectures to outside audiences. It is impractical for judges to expect to be given the licence to participate in political discourse but to be exempt from political criticism.

This should be contrasted with the comments of Lord Phillips to the UCL Constitution Unit. Much of Lord Phillips speech focused the funding arrangements for the Supreme Court and the impact on judicial independence, but he made the following comments on legislative oversight:

There are those who call for some form of confirmatory hearings of judicial appointments under which candidates for the Bench would be submitted to some form of Parliamentary scrutiny.

The Supreme Court of the United States are subject to such a system and I do not believe that this provides a model that we should emulate. It tends to lead to the politicisation of judicial appointments and to the Court being seen to divide on some issues on political lines. I believe that the involvement of lay members of the judicial appointments bodies is a preferable method of securing a democratic method of judicial appointment.

The contrast is clear, Prof Pinto-Duschinsky holds the US model up as an ideal for accountability within the separation of powers, while Lord Phillips sees it as leading to the politicisation of the judiciary. The difference is unsurprising. It is easy to see how those concerned with politics/political science will call for greater legislative input, whereas most lawyers and judges in the UK tend to be hostile to the idea, seeing it as a form of interference (or dismissing the idea that hearings would have any value). Lord Hoffmann, in his introduction to Prof Pinto-Duschinsky’s report, specifically refers to his disagreement with the report’s author on this point.

In the past, I have had considerable sympathy with the US model. It means that top judges are well-known and that people are informed of the different approaches that can be taken by the judges. While the Senate confirmation hearings can sometimes be bitter, it can also provide a national conversation in which people deliberate and consider what the constitutional values should be. That said, I also have reservations about the US model. The British Constitution has a very different tradition, and procedures from another jurisdiction cannot be transplanted over here and assumed to have the same effect.

There are also questions about how effective judicial appointment hearings are in promoting accountability. The ability of Parliament to shape the judiciary would depend on the number of Supreme Court vacancies arising at any one time, and this might vary from parliament to parliament (although with our judges retiring, there will be more turnover here than in the US).  It is also not clear whether judges in Britain can really be identified as having the same ideological leanings as their US counterparts, which may limit the value of the hearings. Finally, there is a real danger that if legislative oversight took off over here, those judges that have never said anything interesting or controversial and never taken an unpopular stand on an issue would be appointed most easily. Blander judges would be less likely to stir up controversy at the hearings and less likely to attract a legislative veto. Are these the people we want on the top court?

Sometimes when I speak with American academics, they suggest it is only a matter of time before the UK follows the US model. I’m not so sure. My feelings on the issue are mixed, but the proposal is one that is worth some consideration and discussion.

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Categories: Uncategorized
  1. Lydia
    May 22, 2011 at 7:14 pm

    Thinking about it from the point of view of a junior judge, the possibility of a future public and politically based hearing to determine suitability for a top job could potentially have a serious effect on decision-making. It is hard enough for ordinary human beings to try to act in a wholly disinterested way when acting as judges – including putting aside any political or other motivations – the thought that the proper decision could also be career suicide seems very unlikely to help.

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