Judicial independence is a central goal of most legal systems in the democratic countries and appointment procedures are seen as crucial mechanism to achieve this goal. While there is a near-universal consensus on the importance of judicial independence as a matter of theory, legal systems practice a wide range of selection mechanisms. These mechanisms are usually prescribed in the Constitutional law of the respective countries. However, none of these constitutional laws allows judges to have a final say in the appointment of fellow judges. India, which has evolved the existing system, is the only exception. Herewith we take a look at the procedures of judicial appointment in the USA and other democratic countries.
USA
In the US, the nine-member Supreme Court is the third branch of the federal government and its decisions have a profound impact on the American society. It is often the final word on highly contentious laws, disputes between state and federal governments, and final appeals to stay executions.
Under Article 2 of the Constitution, the President has the power to make a nomination. “There’s no clear view as to why the President was granted this power,” said Bruce Ackerman, Sterling Professor of Law, at Yale University. The Senate has the task to approve a candidate, in usually tense hearings, a method that enforces the concept of checks and balances between the powers envisioned by the founding fathers.
Divisions at the top court are not new, as presidents tend to nominate people with the same ideological positions, but scholars say there has been little evidence of partisan division until recently.
United Kingdom In the UK, the 12-member Supreme Court was created in 2009, replacing the Law Lords in Parliament, bringing the UK in line with many comparable modern states. It acts as a final court of appeal in cases of major public importance.
The justices are nominated by an independent commission, chaired by the president of the court, a senior judge from anywhere in the UK to be named by the president, and members of the appointment commissions from England and Wales, Scotland and Northern Ireland.
A number of senior judges must be consulted by the commission before any decision is taken. Candidates must have been a senior judge for at least two years or a qualified lawyer for at least 15 years. When someone is chosen, the name is sent to the justice secretary, who can accept or reject it. If accepted, the nomination is then sent to the Prime Minister, who recommends it to the monarch, who makes the appointment.
Canada
In Canada, the federal government appoints judges to the federal courts, the superior courts of the provinces/territories, and the Supreme Court of Canada.
All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges
The Commissioner for Federal Judicial Affairs administers the advisory committees, representing each province and territory, which assesses the qualifications of the lawyers who apply for federal judicial appointments.
The provincial and territorial governments appoint judges to provincial and territorial courts. There are similar eligibility requirements for provincial and territorial appointments. All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges.
Australia
The judiciary in Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and state laws.
Section 72 of the Australian Constitution provides that the Governor-General in Council must appoint the judges of federal courts. In practice the Commonwealth Attorney-General considers who might be a suitable appointment and then writes to the Prime Minister seeking the approval of the Cabinet.
If approved, he makes a recommendation to the Governor-General who considers the appointment through the Federal Executive Council process. For appointments to the High Court, under section 6 of the HC Act, he is also required to consult with the Attorneys-General of the States.
South Africa
The 11 judges of the Constitutional Court are independent. Sections 174 to 178 of the Constitution deal with the appointment of judicial officers. First, the Judicial Service Commission draws up a list of candidates that must have three names more than the number of vacancies. Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection.
