The Persistent Politics of Judicial Selection: A Comparative Analysis
The politics of judicial selection runs deep. Decisions such as whom to select as judges and how to select them will inevitably have political dimensions, whether these relate to ideological politics, party politics, regional politics, group politics and so forth. Because selection processes ultimately shape the ability of courts to hold political institutions to account – and, in some countries, their ability to enforce constitutionally entrenched limits on the legislature – it could hardly be otherwise. The political dimensions vary, of course, from country to country, and, within any one country, from period to period, and perhaps even from court to court. But, in the final analysis, whether our focus is on civil law or common law systems, there will always be political dimensions to the selection of judges. In this essay, I want to sketch some of the ways in which judicial selection is distinctively political in character (and, here, I use the term selection to include not only initial recruitment into the judiciary, but also a judge’s subsequent progression up the judicial ranks). I do so as part of a larger argument against the depoliticization of judicial selection. Any and all attempts to eliminate politics are bound to fail, and all too often efforts to restrict the role of political institutions in the selection of judges are misdirected. Politics cannot be removed from the recruitment and selection of judges, and nor should it be. The political dimensions must instead be brought into the open and publicly acknowledged. For at the end of the day, political institutions must always have a role in judicial selection.
KeywordsLegal Profession Political Dimension Political Legitimacy Judicial Independence Professional Model
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