Justice Anthony Kennedy announced his resignation on Wednesday morning, adding insult to a conga line of SCOTUS–related injuries suffered by progressives in the preceding days. After that news broke, Vox declared that Kennedy’s retirement shows that the high court is less responsive to the political will than “every other democracy in the world” due to a lack of term limits. Unfortunately for Americans, this article is at baseline Vox levels of wrong.
On the same day and at the same website, Ezra Klein argued that justices serving for life results in a “randomly undemocratic” court. Well, yes — yes it does. The anti-democratic inertia of the U.S. Supreme Court is by design. Its members are appointed by a not-very-democratic president and confirmed by the even-less-democratic Senate. To actually adjudicate questions of law, a court must be above politics. This invites the question: why should democracy play any part at all in this ostensibly neutral body? How might another, just-as-stable polity do it?
The following countries allow for no meaningful public deliberation on the composition of their senior courts. The same countries also have top ranks in terms of rule of law and judicial independence.
Judges in Australia assume office without fanfare, and no legislature plays a part in their appointment to courts. The Attorney-General of Australia chooses a candidate after consulting with state attorneys-general, and the governor-general confirms that candidate by convention. Judges have no term limits, but must retire at age 70.
Justices of Belgium’s Court of Cassation, its court of last resort, are selected by the Monarch from a list of candidates submitted by the High Council of Justice, a 44-member body of judges. These justices are appointed for life.
In Canada, only at the lowest, provincial level is any kind of representative body involved with the appointment of judges. The Supreme Court of Canada, like its southern counterpart, is composed of nine justices. The Governor General of Canada — the Queen’s viceroy — appoints justices on the advice of the prime minister and his cabinet. The parliamentary opposition is excluded from the decision, as are any dissenting members of the prime minister’s own governing party. The provinces are given no role in the appointments, either.
Lower court appointments are a little different, but here the judiciary is also separated from the mob. Candidates for judges of superior and appellate courts are vetted by an eight-member committee of their applicant’s provinces. These committees themselves are constituted in a rather aristocratic way, the eight members being:
- A representative of the provincial law society.
- A representative of the provincial branch of the Canadian Bar Association.
- A judge nominated by the Chief Justice of the province or territory.
- A representative of the provincial Attorney General or territorial Minister of Justice.
- A representative of the law-enforcement community.
- Three representative of the federal Minister of Justice.
The pool of nominees is then forwarded to the Minister of Justice, who choose a nominee to recommend to the federal cabinet. After this happens, the the nominee is confirmed or denied by the Governor General, by way of the same process as justices of the Supreme Court. All federal judges may sit on the bench without term limits, but they are forced to retire at age 75.
In Liechtenstein, a German-speaking microstate sandwiched between Switzerland and Austria, the hereditary Prince Regnant calls and chairs a joint commission to appoint judges at all levels of the court system. The joint commission is only an advisory body; the Prince has the final word on nominations being passed to the Diet of Liechtenstein for approval. The Diet can reject his nominees and then propose its own, but the Prince and Diet must on a candidate within four weeks or the nominee is instead chosen by a referendum. Even in the case of a nominee being selected by the Diet or by ballot, however, the Prince’s solitary status as the appointer of judges means that he could theoretically exercise a pocket veto.
Outside of the judiciary, the Prince also has the power to convene and close sessions of the country’s Diet, can veto all legislation without the possibility of override, and can dissolve the government at his discretion. Interestingly enough, many of these princely powers were granted by a 2003 constitutional referendum.
Luxembourg has both a Superior Court of Justice, which is limited in jurisdiction to civil and criminal matters, and a Constitutional Court, which determines if laws are compatible with the Grand Duchy’s constitution.
Judges in all Luxembourgian courts, high and low, are directly appointed by the Grand Duke. Only appointments made to the Superior Court involve input from an advisory body — the Superior Court itself. Judges at all levels serve for life.
Members of the Supreme Court of the Netherlands are selected by royal decree, and may serve until the age of 70. The Monarch chooses from a list of three candidates proposed by the Court itself on advice from the House of Representatives.
The King of Norway is responsible for appointing judges to the country’s Supreme Court and other senior courts. He does so on the advice of the Judicial Appointments Board, a body whose members are also appointed by the King.
The United Kingdom
The Supreme Court of the United Kingdom is largely self-governing. When there is a vacancy, the Lord Chancellor, an officer of state appointed by the Monarch, convenes an ad hoc selection commission. The commission is chaired by the President of the Supreme Court and composed of one judge of that President’s choice, in addition to one member from each of the three subnational Judicial Appointments Commissions from England, Scotland and Northern Ireland. For any given vacancy, the selection commission chooses a single nominee that after consulting with the UK’s other most-senior judges. If the Lord Chancellor approves the person selected by the commission, the prime minister is required to recommend that person to the Monarch for appointment.
The Judicial Appointments Commission (JAC) is responsible for selecting judges for all but the United Kingdom’s highest courts. That body is composed of judges and laymen that are selected by the Ministry of Justice’s Centre for Public Appointments. That body is constituted by members chosen by the Cabinet.
Judges sit on the bench until retired at age 75, and once appointed cannot be removed except under exceptional circumstances.
The Commonwealth of Nations
The sprawling Commonwealth is a mixed bag, counting more than a few dysfunctional nation-states as members. One of the best things that developing countries can do is export the adjudication of their laws to a disinterested and stable third-party, and the Commonwealth provides exactly that with its Judicial Committee of the Privy Council. As its name suggests, the body is constituted by members of the Sovereign’s Privy Council who are (or once were) also senior judges in the United Kingdom, as well as by members of the Supreme Court of the United Kingdom.
A non-exhaustive list of independent nations that still have the Privy Council as their court of last resort:
- Antigua and Barbuda
- The Bahamas
- Saint Kitts and Nevis
- Saint Lucia
- Saint Vincent and the Grenadines
- Trinidad and Tobago