International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
July 2006, Volume 1, Issue 3
 

In Review:
New Publications on International and Comparative Law

Appointing Judges in an Age of Judicial Power: Critical Perspectives From Around the World. Edited by Kate Malleson and Peter H. Russell. University of Toronto Press. 2006

When nobleman, political philosopher and judge Baron de Montesquieu published his The Spirit of the Laws in 1748, he probably did not realize that he was igniting a silent revolution, the effects of which are still being felt today. Montesquieu, in his treatise, was the first major, or perhaps even the first ever, writer to suggest that any legitimate national government requires an independent judiciary. The founders of the American nation and the writers of the U.S. Constitution picked up on this radical notion and embodied it in Article III of that Constitution, which established the first separate judicial branch in history.

A significant issue growing out of Montesquieu’s thoughts about judicial independence, which he did not address, relates to the method by which judges are selected. Obviously, the issue of an independent judiciary is closely related to the question of judicial quality, which in turn is directly related to the issue of how judges are selected.

As judges and court systems become more important and critical players in the life and success of individual countries and among the countries of the world, the issue of judicial selection takes on added significance. That issue is the central concern of this new book from the University of Toronto Press.

The book is the result of a “series of meetings of the International Political Science Association’s Research Committee on Comparative Judicial Studies.” Appropriately, the editors are a political scientist (Peter H. Russell of the University of Toronto) and a law professor (Kate Malleson of the Department of Law of Queen Mary, University of London). Of the 22 contributors to the volume are ten professors of law and eight political scientists. Others authors include a judge, a lawyer, a representative of a non-governmental organization, and a candidate for a doctoral degree.

There are nineteen substantive chapters that focus on judicial selection methods in particular countries or groups of countries. Part One includes those countries that are “well established democracies”: Scotland, England and Wales (the first treated separately); Canada, the United States, New Zealand, Australia, the Netherlands, Italy, France and Germany. Importantly the second part focuses on international courts. The third and last part includes “new democracies and transitional states”: Israel, Egypt, South Africa, Namibia, Zimbabwe, Japan, South and Southeast Asia; Russia and China. All of the essays are written by eminent scholars and observers, and each probes in some detail the methods, problems and reform issues of judicial selection in the respective nations or groups of states. They all provide very useful reference material.

Of special interest to rule of law aficionados and for those who are not interested in detailed descriptions of the mechanisms of judicial selection in individual countries, are the remarks in the Forward, Introduction, Conclusion, and Part Two, which deals with international courts.

Canadian Supreme Court Justice Frank Iacobucci, author of the Forward, states in the very first sentences why its subject is so very significant:

No country can claim to be an enlightened democracy without the presence of certain attributes, including the rule of law and an independent judiciary. Moreover, no judiciary can expect to obtain the acceptance of and obedience to its judgments if certain badges of legitimacy are not present. One of the most important badges is that well-qualified candidates sit on the nation’s bench…Who serves in judiciary the of a country is of utmost importance to the quality of democracy in that particular country.

And he makes clear that judicial selection methods determine whether or not “well qualified candidates” do in fact sit on a nation’s bench.

Co-editor Kate Malleson notes in her Introduction that the appointment of judges has not been a subject of much scholarly scrutiny. This is because, outside the United States, the judiciary has largely been viewed as a “body of legal experts or civil servants rather than a branch of the state…” The “global expansion of judicial power” has changed all of that; there is now an “increasing interest in global selection across different political systems.” She echoes Justice Iacobucci’s comment in the Preface that “implicit in the scope of the volume is a commitment to the idea of an independent and strong judiciary as a defining feature of a healthy democracy.” She also identifies two of the major themes that run through the separate commentaries:

  • Rethinking “the balance between judicial independence and accountability in judicial appointments processes,” which is complicated by different approaches required for trial courts and appellate courts
  • A “growing recognition of the importance of selecting more diverse judiciaries.”

In addition, she recognizes the necessity of the “participation in some form of the elected branches of government in the appointments process of the highest ranks of the judiciary.”

Finally, she correctly observes that identifying what makes a judge good and qualified is directly related to assumptions about what judges do. “Greater specialization, more emphasis on active case management, and the emergence of more consumer-oriented adjudication processes in which judges are service providers” change perspectives about the qualities and qualifications of judges.

Well-known and well-established international lawyer Philippe Sands is the co-author of the chapter on the selection processes for international judges. He notes that the methods by which international judges are selected was not an issue in 1960 when the International Court of Justice was the only international court. Now, however, there are more than thirty international courts employing more than 250 judges, thus international judicial selection processes have become a matter of importance and increasing interest. Sands and his co-author Ruth Mackenzie, write:

The courts and the judiciary have emerged as important international actors, with the potential to place significant constraints on traditional state freedoms. The existence of these bodies signals a desire to strengthen the rule of law in international relations, and the extent to which that desire will be achieved turns, in part, on the process by which the judges are appointed.

Unfortunately, as the two authors note, there is little knowledge about how international judges are selected; the decision making processes of judicial selection are rarely “open to public scrutiny.” This situation must be remedied because “it may tend to undermine the legitimacy of those processes and could, over the longer term, diminish the possibility that international judicial bodies can operate effectively.” There follows a review and analyses of what is known about the selection processes for the different international courts. Thus this particular section of the book is an important contribution to the literature of international courts generally and should provide a clarion call for more knowledge and reform about international judicial selection processes.

In the conclusion of the book, the co-editor, Peter H. Russell, reveals in more detail the common themes and ideas that run through the analyses of judicial selection processes in the selected countries. He acknowledges immediately “the inescapable political nature of the process of selecting judges” despite the “understandable human aspiration” of insulating the appointment of judges from politics. He notes that the individual analyses almost unanimously discuss and analyze the issue of judicial independence and judicial accountability. Of special interest to American lawyers and political scientists is his acknowledgement that “the reforms attracting the most interest do not emulate the American model of balancing a highly political and ideologically directed executive control of nominations with a robust and equally political challenge to nominees in a chamber of the legislature.” Finally he echoes the introductory comment that the various analyses demonstrate that “what constitutes a high quality judiciary is changing and broadening.”

The book has two identifiable deficiencies. It is regrettable that, while an examination of three African countries is included, there are no Latin American countries represented, even though there are democracies in that area of the world. In addition, although there is commentary on the Egyptian judicial selection process, there is no discussion about other less developed and more Islamic Arab states, and the very real problems of judicial selection in those countries where the legal system is wedded to or intertwined with Islamic religious practices, the Sharia. Even though the book is devoted to established and emerging democracies, some commentary from an Islamic legal scholar on judicial selection practices in true Islamic states would have been helpful. Perhaps that is the subject of a future project and volume of the political science committee that is responsible for this valuable addition to rule of law literature.

Baron de Montesquieu would be pleased that his ideas about the role of the judiciary in government are still exciting interest over 250 years after he wrote about them.

By James G. Apple, Co-Editor, International Judicial Monitor and President, International Judicial Academy

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ASIl & International Judicial AcademyInternational Judicial Monitor
© 2006 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Katherine Brantingham and Andrew Solomon.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editors at IJM@asil.org.