Abstract
This chapter discusses global trends in the selection of judges and provides an analysis of judicial independence and impartiality, concerning the various means of achieving these interwoven goals and how these means are implemented by different legal families. Independence and impartiality are undoubtedly considered both critical and fundamental elements, as well as an indispensable part of a fair trial, in all justice systems. Having direct relevance to both impartiality and independence is the question of how a judicial post may be taken in various countries, with different legal systems. The procedures of the appointment and selection of judges, and, in the case of the United States, the process of judicial election, are also introduced in a comparative approach. The means of common law legal systems are contrasted with methods employed in continental legal systems towards achieving independence and impartiality, along with a wide array of examples to demonstrate the advantages and shortcomings of each.
In terms of selection procedures, recent reform in the United Kingdom denotes an apparent convergence of common law and civil law and a tendency towards the adoption of a merit-based method of selection.
A brief historical overview introduces how these procedures have evolved as well as the political factors that have influenced or even driven change in the selection procedures utilised in England, the United States, Germany and France. And finally, the analysis also compares the influence partisanship may have and may have had on the independence and impartiality of the judiciary branch and judicial decision-making and on justice systems as a whole.
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Notes
- 1.
As proof of this, we could mention the title of an article written by Peter Cook and published the Economist as an example, of which the subtitle in itself is enough to spark controversy and displace the confidence in judges: ‘Money and back-room politicking are contaminating the selection of judges’.
Note: for citation, see References.
- 2.
ECHR, 19 April 1994, Appl. no. 16034/90 (Van de Hurk v. the Netherlands).
- 3.
See, for example, Rights (ECHR), 6 February 2011, Appl. no. 31145/96, 35580/97 (Wilkinson and Allen v. The United Kingdom); European Court of Human Rights (ECHR), 8 July 1999, Appl. no. 23927/94, 24277/94 (Sürek and Özdemir v. Turkey).
- 4.
ECHR, 1 October 1984, Appl. No. 8692/79 (Piersack v. Belgium).
- 5.
Constitutional Reform Act 2005.
- 6.
Evidence to the Lord Chancellor’s Department select committee, 2 April 2003, Q 28.
- 7.
When a judicial position is freed, the selection procedure is determined by the Committee, and the procedure is carried out. The Committee then sends the nomination proposal to the Lord Chancellor, who may then accept or reject the appointment or return it (to the Committee) for consideration. The incompetence of the candidate may be the only basis for rejection, while in returning the proposal for consideration, the Lord Chancellor must justify that the candidate does not have all sufficient evidence necessary to prove his competence. All of this must be reasoned in writing. The options available to the Lord Chancellor are limited in the next phase because if he had sent back the previous candidate for reconsideration, then in this phase he may now only reject the nomination. If he had rejected the first candidate, he has the option to return the nomination for consideration. In the first instance, the Committee may then nominate a new candidate, under the stipulation that he may not choose a candidate whose nomination was sent back for consideration in the first round. And, in the second instance, the candidate that was rejected in the previous round cannot be nominated again by the Committee. After this, the Lord Chancellor must accept the decision of the Committee, and his only other option is to accept the candidate whose nomination he sent back for consideration in the first round. Following this, depending on the level of the judicial post, either the Chancellor or the Queen officially appoints the judge, or in some cases, the judge is appointed by the Queen based on the opinion of the head of government.
- 8.
From 2007, this was extended to also apply to judges of the Court of Appeal.
- 9.
Judicial Appointments and Conduct Ombudsman.
- 10.
The qualifications that are necessary for appointment – including the elements and definition of the merit principle – are set forth in the Constitutional Reform Act 2005, s25; Supreme Court Act 1981 s10; Courts Act 1971 s16; County Courts Act 1984 s9. 9.
- 11.
Constitutional Reform Act 2005.
- 12.
See List of Qualities and Abilities, Judicial Appointments Commission.
- 13.
- 14.
See National Archives, retrieved from
- 15.
See Selection Policy; Qualities and Abilities. Judicial Appointments Commission, retrieved from http://jac.judiciary.gov.uk/application-process/112.htm
- 16.
Qualifying tests and paper sift. Retrieved 11 August 2011 from http://jac.judiciary.gov.uk/selection-process/19.htm
- 17.
Judges of the US District Courts, the US Court of International Trade, the US Court of Appeals Circuit Courts, and the Supreme Court of the United States receive lifelong appointments, while generally all other federal judges are appointed for 15-year terms (US Court of Federal Claims, US Bankruptcy Courts, US Tax Courts).
- 18.
Since the 1950s, a special committee of the American Bar Association also tests the competency of candidates.
- 19.
Georgia was the first state to introduce the election system for judges in 1912.
- 20.
“Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case has a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” “The inquiry… centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
- 21.
See dissenting opinions of Justice Roberts and Justice Scalia.
- 22.
Alaska, Arizona, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, and Wyoming.
- 23.
See American Judicature Society, Merit selection: The Best Way to Choose the Best Judges (2007), available via www.ajs.org/js/ms_descrip.pdf
- 24.
The famous words of Roscoe Pound can be quoted as ‘putting courts into politics… almost destroyed the traditional respect for the bench’. See References, Pound (1937).
- 25.
See, for example, interview with Renate Jaeger, constitutional court judge, Frankfurter Rundschau, 18 Sept 2003.
- 26.
Baden Württemberg, Berlin, Brandenburg, Bremen, Hamburg, Hessen, and Schleswig-Holstein.
- 27.
During a discussion, in questioning the role of ministries, the head of a state court stated that ‘we are so accustomed to the ministries deciding in administrative issues that it has just always seemed so natural. Now that you’ve asked, it makes me think as well, that maybe this is not completely okay’.
- 28.
See response of Judge Hochschild, References (Thoma 2011).
- 29.
Das Unwarscheinliche ist nur ein Grenzfall des Möglichen, und wenn es einmal eintritt, das Unwahrscheinliche, so besteht keinerlei Grund zur Verwunderung, zur Erschütterung, zur Mystifikation (Frisch, Homo Faber, 1957, 28. id. Hochschild i.m. 67).
- 30.
Macke, DRiZ 1999, 481.
- 31.
Diskussionentwurf für ein Landesgesetz der Selbstverwaltung der Justiz (18.03.2009).
- 32.
Conseil Supérieur de la Magistrature.
- 33.
As a result of the national scandal resulting from Algére and Voirain judges, a much stricter ethical code was put in force with regard to civil judges. Furthermore, ethical questions received more widespread attention in the training of judges as well.
- 34.
Hereinafter, the Chief Justice of the Cassation Courts heads the Council.
- 35.
Original name: Centre national d’études judiciaires. Since 1970 (Loi n. 70-642 du 17 juillet 1970) École nationale de la magistrature.
- 36.
The first type of exam may be taken up until the age of 31, and the opportunity is tied to obtaining a specific degree after high school graduation. The second type requires serving at least 4 years in a public office and must be completed before the age of 48. The third type must be completed by the age of 40 and requires at least 8 years of professional experience in the private sector or service in local public office or laic judicial experience.
- 37.
This is strictly dependent upon the number of applicants accepted through competitive examinations.
- 38.
Nomination directe en qualité d’auditeur de justice á l’ENM (Article 18-1 du statut de la magistrature).
- 39.
Either is older than 31 years of age, holds a law degree, and proves at least 4 years of professional experience or holds a Ph.D. in law as well as a second degree or has been employed as a lecturer-researcher for at least 3 years after obtaining a degree in law.
- 40.
Intégration directe dans le corps judiciaire (Articles 22 et 23 du statut de la magistrature); Détachement dans le corps judiciaire (Articles 41 et 41-1 á 41-9 du statut de la magistrature); Magistrat exercant á titre temporaire (Article 41-10 du statut de la magistrature).
- 41.
For further reading, see also the most comprehensive volume concerning this topic: Canivet et al. 1996, under References.
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Badó, A. (2014). ‘Fair’ Selection of Judges in a Modern Democracy. In: Badó, A. (eds) Fair Trial and Judicial Independence. Ius Gentium: Comparative Perspectives on Law and Justice, vol 27. Springer, Cham. https://doi.org/10.1007/978-3-319-01216-2_2
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