Appointment of Judges to High Courts in Democratic Countries: A Comparative Study

The research examined 42 countries included all the OECD member states along with other leading democratic countries.

Abstract

• The research examined all 42 countries that were included in a study  published in 2019 by the Kohelet Policy Forum, which included all the OECD member states at the time, along with other leading democratic countries.
• The accepted models used for appointing judges to high courts are as follows:

7 countries	Appointments are made by a special majority in parliament, such as two-thirds
11 countries	Appointments are made jointly by two separate branches of state, such as a President elected in general elections and the parliament
8 countries	Each branch of state (usually including the judiciary) is allocated a specific  number of appointments
15 countries	Only candidates who have been recommended by legal professionals (such as the President of the High Court) or by committees in which professionals vet or decide on candidates, can be appointed
1 country (Poland)	Exceptional cases

• The countries in which judges are appointed from a pool of candidates recommended by legal professionals can be categorized  as follows:

Professionals have decisive influence on decision-making	Professionals vet candidates	Advisory  models
Britain	Denmark	Sweden (by custom, professional advice is followed; professional considerations)
Luxembourg	Estonia	Norway (by custom, professional advice is followed; professional considerations)
Greece	Ireland (according to new proposal)	Canada (by custom, professional advice is followed; professional considerations)
Mauritius	New Zealand	Australia (professional considerations)
Botswana
Malta
Israel

At least 8 of these 15 countries have beefed up the role of professionals in the last two decades (or in the case of Ireland, will do so shortly), and none of them have cut back their role: the Rotman-Levin proposal is unique in this regard.

 

• In only a very few countries does the government appoint judges by means of a simple majority in a single selection body, as is planned in Israel.
• In those countries, it is accepted practice to hold professional consultations or use professional vetting of candidates, so that the government only appoints judges recommended based on a professional mechanism.
• The only exception in which there are no restrictions (even customary ones) on the power of the majority to appoint judges, is Poland

• In comparing methods of judicial appointment, two additional important facts should be taken into consideration:

  • Unlike almost all the other countries, in Israel, there are currently no protections to prevent the ruling majority from changing the constitutional framework and revoking rights provided by basic laws.
  • Israel is the only country among all those studied that has no restriction, neither internal or external, on the power of the ruling political majority in a unicameral assembly (the Knesset), apart from the Supreme Court.

Introduction

The Importance of an Independent Supreme Court

In all liberal democracies, an independent high court is vital for maintaining democratic mechanisms and protecting individual and minority rights.

In Israel, the Supreme Court plays a particularly significant role, since  political power is concentrated in the hands of the “core of the ruling coalition”—a relatively small group of politicians who control all levers of political power (the Knesset and the government), without any internal or international mechanisms limiting t their power. Israel is unique in the world in terms of this concentration of power.[1]

The independence of the Supreme Court depends to a great extent on the formulation of appropriate  processes for the appointment and dismissal of judges. These processes must ensure a balance between the principle of judicial independence and professionalism, and the principle of democratic accountability and the need to reflect social diversity.

To fully put these principles into practice and ensure the proper balance between them, democratic countries around the world have adopted various methods for appointing judges. What these methods have in common is that almost none of them grant exclusive power over the selection of high court judges to the ruling government.

The comparative study we conducted, further to previous studies carried out by others and by ourselves, reveals that there are four main mechanisms used around the world to appoint judges:

• Appointment of judges by parliament with a special majority, usually requiring consensus between the ruling coalition and the opposition.
• Appointment of judges requiring cooperation between two independently elected branches of state (executive and legislative), which are not necessarily controlled by the same party.
• Appointment of judges is divided up among the three branches of state (legislative, executive, judicial), with each entitled to appoint a specific number of judges.
• Bodies with a clearly dominant professional component vet the candidates before they are appointed by the legislative branch.

Almost all democratic countries around the world appoint judges by means of one of these mechanisms. There are almost no democratic states in which judges are appointed by the ruling government without any independent vetting mechanism.

Judges appointed by parliament with a special majority	Cooperation between two independently elected branches of state	Appointments divided up between branches of state	Vetting of candidates by professional bodies
Germany	United States	France	Denmark
Hungary	Iceland (also a binding vetting committee)	Austria	Sweden
Portugal	Belgium	Latvia	Norway
Uruguay	Mexico	Lithuania	Estonia
Costa Rica	Czech Republic	Italy (also by special majority)	Canada
Cape Verde	Slovakia	Spain (also by special majority)	Australia
Switzerland (political consensus)	Netherlands (based on a list provided by the Supreme Court)	South Korea	Ireland
	Finland	Chile	New Zealand
	Turkey		United Kingdom (binding committee)
	Japan (confirmation by referendum)		Luxembourg (binding committee)
	Slovenia		Greece (controlled by the judicial branch)
			Israel (controlled by the judicial branch)
			Mauritius (committee of legal professionals, except for the Supreme Court president)
			Botswana (binding, except for the Supreme Court president)
			Malta (binding decision of professional committee, except for the Supreme Court president, elected by a two-thirds majority in parliament)

 

The only country examined in which (to the best of our knowledge) there is no mechanism in place to restrict the power of the ruling majority nor any professional vetting or consultation mechanisms, is Poland.[2]

In light of the dominance of the executive branch in Israel, which in practice controls the Knesset, it is not an option to divide judicial appointment  powers between two independent branches. The legislation currently being proposed would include the opposition in decisions on the appointment of judges to the Supreme Court, only from the third appointment in each parliamentary term.

In this study, we focused on methods in which the ruling coalition holds sway over the appointments process, but which also include professional vetting and consultation mechanisms.

A close examination of such models reveals that they lie on a spectrum, in terms of the degree of influence of legal professionals over appointments. At one end are methods in which professionals can (in theory or practice) veto the appointment of judges. At the other end, are methods in which professionals are involved and have some impact on decision-making. There is almost no country in the democratic world in which judges are appointed to the high court without any reference to a professional opinion.

Professionals with decisive influence on appointments

As stated, in the model which puts a major emphasis on professional input, there are methods to ensure that professionals have decisive influence on judicial appointments. Thus, in Denmark, for example, a judge cannot be appointed to the high court without first gaining its support and the support of the professional committee; and in Estonia, the president of the high court has the exclusive right to propose candidates for the high court to parliament (with the exception of candidates for president). This will probably also be the case in Ireland in the near future, according to a bill currently in its final stages of discussion in the upper house of the Irish legislature.

Professional vetting of candidates

A less conservative model of professional vetting of candidates, exists in countries in which professional bodies propose several judicial candidates to a political body, with the latter making its decision from within this pool. This is the case in Canada, for example, where a committee with a majority of professionals formulates a list of candidates, from which the prime minister selects an appointee; and in New Zealand, where the president of the high court formulates a list of candidates for every position on the high court, for the minister of justice to choose from.

Advisory models

The most flexible model, in terms of the influence of legal professionals over judicial appointments, is that in which professionals have a solely consultative role—as in countries such as Australia, Sweden, and Norway. It should be noted that even in these states, it is accepted practice for those with the final decision on appointments to follow the recommendations of these professionals. Moreover, in almost all these countries, it is clearly stated in law or in the constitution (or else it is incontrovertibly accepted practice) that appointments must be made on the basis of professional considerations.

Thus, the models applied around the world indicate the importance of restricting the power of the government in choosing judges. Such limitations are usually implemented by constitutional separation of institutional powers. However, even when the government or the coalition does not share this power with another branch of state—by law or in practice—there is immeasurable importance in having professional vetting or advisory committees, as well as in prioritizing professional considerations.

The practice of judicial appointments in democracies clearly demonstrates the importance of such professional committees. Even in states in which political bodies hold the formal power to appoint judges, politicians have been careful to acknowledge the importance of consultations in the decision-making process, and in practice-this almost always means accepting the views of the professional advisors.

These practices are part of the unwritten constitutional tapestry of legal arrangements; and according to the conservative tradition of Edmund Burke, these arrangements, “reflect the wisdom accumulated over centuries of political decision-making … and the logic they embody exceeds that of any individual or generation.”[3] Ignoring constitutional customs is indeed one of the radical (and most problematic) features of populist movements.[4] It is all the more  problematic in cases which are not theoretical arguments over the proper course of action, but rather involve eroding  the importance of constitutional customs in practice. In fact, in those countries in which the custom is to consult with legal professionals, it is (almost) never the case that political bodies decide on judicial appointments that run counter to professional recommendations. In almost all such countries, professional considerations are the decisive factor in judicial appointments-- not political considerations.

The last point that needs to be emphasized on this issue is the clear international trend over recent decades in which democratic countries (regardless of whether or not they have stated so explicitly) have tended toward reducing the influence of the executive branch over judicial appointments. Thus, a long list of countries have introduced reforms designed to increase the influence of professionals over the appointment of judges to high courts in particular, and to the justice system in general.

 

Additional Restrictions on the Power of Politicians

As noted above, almost all democratic countries have other checks and balances on  the power of the majority, in addition to the high court. These mechanisms can be divided into two main categories: Internal restrictions and external restrictions.

Internal restrictions

• Federalism: Regimes in which power is shared between the central government and regional districts.
• Bicameral legislatures: Passing legislation requires a majority in both houses.
• A president with executive powers who is elected independently: Presidential or semi-presidential regimes confer power on the president to oversee and limit the legislative activities of the majority in the legislature.
• Regional elections: In regional elections, representatives in parliament answer mainly to their constituents, and thus the power of the majority party is weaker relative to that of the individual elected representatives.

External restrictions

• The European Union: Most European countries are members of the European Union—a supranational institution that places considerable restrictions on the ability of the majority in each country to legislate as it wishes, across a wide range of issues, including human rights.
• International courts of human rights: The European Court of Human Rights and the Inter-American Court of Human Rights hold judicial review powers regarding infringements of human rights within countries, and offer another layer of protection for human rights in addition to constitutional courts.

 

 

* We wish to thank Adv. Daphne Benvenisty, Adv. Amir Cahana, and Adv. Lital Piller for their help with this study.

[1] Amichai Cohen, The Override Clause—Checks and Balances Provided by the Supreme Court (Israel Democracy Institute, 2018).

[2] It should be noted that we looked at the situation in Poland up to 2019; since then, various changes have taken place in the country.

[3] In Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, North Carolina Law Review, 72, 619 (1994).

[4] The well-known American judge Felix Frankfurter summarized this point in the following classic manner: “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or Legislation, but they give meaning to the words of a text and supply them. It is an inadmissibly narrow conception of American Constitutional law to confine it to the words of the constitution and to disregard the gloss which life has written upon them.” Youngstown Sheet & Tube v. Sawyer 343 US 579, 610 (1952).