I know of 2 common ways to fill judicial openings. One is by appointment, and the other is by election. I’m not real fond of either option.
Election - The idea of a judge running in a popularity contest (and let’s be honest, lots of election are more about popularity than about ability) bothers me. Add to that the fact that it’s a lot of work to suss out enough info, pre-election, to make a educated choice, and election judges seems like a bad idea.
Appointment - bad for a different set of reasons. “I’ll appoint judges that think just like me” or “I’ll appoint you if you vote my way” or “I owe you one, here’s your bench seat”. It’s way to easy to get judges appointed for all the wrong reasons.
So how do we get qualified, balanced, open-minded people in these positions?
Well, I suppose we could take “judicial combat” at face value…
J/k… I don’t really know how to better choose judges. Even if you empanel some people and charge them with choosing the judges, you still have the problem of choosing the panel, with all the concerns about favoritism, partisanship, nepotism, etc…
I sort of think that electing judges, subject to a set of minimum qualifications (have passed the bar, practiced law for X years, be a citizen, etc…) and then having provisions for recalling judges if they turn out to stink, is about the best you could hope for.
Israel appoints judges using a 9-member Judicial Selection Committee, consisting of two members of the executive branch (the Minister of Justice and one other minister), two members of Knesset (parliament - traditionally one from the majority and one from the minority), two members of the Bar Association and three Supreme Court justices. Most judges are selected via simple majority; Supreme Court justices require a vote of at least 7 out of 9.
Because there are three of them, and because they’re effectively permanent members, historically he Supreme Court justices have dominated the appointments, including of their replacement. Whether this is a good or bad thing is up to you to decide. Note that Israeli Supreme Court judges have a mandatory retirement age of 70.
You’re facing heart surgery. You have to find the best surgeon for the job. Do you ask your local neighborhood to decide which surgeon or do you let other doctors decide? What choice do you make?
Well I’d sure rather use the surgeon that other doctors use. But right now, depending on where I live in the US, that isn’t an option. I may have her picked by the neighborhood, or I may have her picked by the hospital administration.
I think you guys see judges as much more of a part of the political landscape than other countries do. In countries where judges aren’t elected, their personal politics are largely unknown by the general public.
Quite. Electing judges through the usual political process is something most of us in the UK just don’t understand. On the other hand, we do acknowledge that, though the old process of appointment was never as crudely politicised as OP posits, it tended to the usual oligarchical problem of like appointing like, which has meant a lot of attention to how better to reflect diversity in the process. We now have a formalised process of open application and selection by an independent judicial commission:
At the lowest level, sortition, aka drawing lots, aka randomly. Anyone with the legal background education required is able to apply for the job when it’s open, and one is chosen randomly. For higher level judges, the lower level judges vote.
The ABA used to produce a shortlist of judges deemed suitable to be appointed for the higher judgeships. IRRC, something on the order of 10 for SCOTUS with the President often picking one of the top 3 or so.
Then the list was completely ignored so we don’t hear about it anymore.
But I’d like to see something like that returned. One varied group of knowledgeable non-political people pick a list of sane, experienced people, then a “primary” stage involving the legislature* to whittle it down to two then a vote or exec pick of those two.
E.g., each picks one candidate. The top two vote getters are selected. So generally the favorite of each party. But not necessarily.
The ABA has never produced a “shortlist” or endorsed candidates. In 1956, it began evaluating groups of prospective candidates for judgeships upon the request of the POTUS. In other words, the lists came from the President, not from the ABA. This practice was ended by Bush II, reinstated by Obama, and dropped again by Trump. It evaluates prospective SCOTUS candidates once they have actually been nominated (unlike lower court judges).
Absolutely. I’m relatively politically savvy, but wouldn’t have a clue what political leaning any Australian magistrate or judge has. Oh, except for one, Michael Kirby, who sat on our High Court and actively involved himself in social justice issues after retiring from the court. I’m guessing he’s what you folk in America would call a liberal.
If you need work done on your car, would you trust a panel of auto mechanics to decide who fixes your car, or would you get reviews from satisfied/dissatisfied prior customers?
Who I let decide is a delicate balance between knowledge of the industry and shadiness of the participants.
Doctors - OK
Dentists - OK
Roofers - No
Used Car Salesmen - Fuck No
Lawyers / Politicians - (this is an exercise for the reader)