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CHOOSING THE BENCH

given the potential for judges on high courts to influence law and policy, a country’s most important choice with respect to high courts may be how judges are appointed. As we will see, countries have adopted a range of appointment processes, placing different emphasis on such values as democratic accountability and independence. Important for our analysis, these processes include not only the written requirements that are often found in constitutions or legislation but also norms about who actually chooses as opposed to who has the formal power. The process may also encompass norms about the proper criteria for choosing judges such as whether judges must be only chosen for their legal abilities or whether policy preferences are legitimately considered.

The decision about who to appoint can have long-term consequences as judges in some countries spend a long time on the bench. Figure 3-1 shows the average time on the bench for judges in different countries who were on the high court between the 1970s and the early 2000s.[1] Judges on the US Supreme Court on average sat for 26 years. In Canada and Australia judges on average were on the high court for a little under 15 years. At the other end of the spectrum, Indian Supreme Court judges on average remain on the bench for less than 6 years. Over this 30-year period, 19 different high court judges were

Table 3-1. Location of Appointment Powers in Different Common Law Countries

Countries

Branch of Government

Executive

Legislative

Judicial

Canada, Australia, pre-2005 Britain

?

us

?

?

Britain,3 India (after legislation)

?

?

Israelb

?

?

?

India

?

a In Britain, two of the five members of the selection commission must be non-legally qualified, which means that members of the public also have direct power over the selection process, in addition to the executive and judicial branches of government. See section 3.3.

b In Israel, two of the nine members of the selection commission are elected members of the bar, in addition to judges, ministers, and parliamentarians. See section 3.3.

involved in decisions in the united States, 26 in Australia, 35 in Canada, 52 in the uK, and 131 in India.

As can be seen from Table 3-1, different branches of government appoint judges in the various countries we are studying. In order to analyze the influence of these differences, we divide the countries into four groupings depending on who has the principal appointment power: the executive (Canada, Australia, and the united Kingdom pre-2005, along with other countries such as New Zealand and South Africa); the executive and the legislature (united States alone); independent committees (united Kingdom, Israel, and, going forward, potentially India); and the judiciary (India). As we will see, these groupings are not watertight. There are formal or informal connections between the ultimate decision-maker and different parties. However, it is useful to think of the core decision-maker to understand the trade-offs made in each country.

  • [1] Some judges continue to sit on the high court currently, particularly in the United Statesslightly skewing the data downward.
 
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