The Committee Approach
The United States tries to balance the power of the executive by requiring the involvement of the legislature. The UK and Israel have taken a different tack in addressing the political nature of the appointment process. Each maintains a connection to the executive or the legislature but grants significant power to a committee. The committee structure is different in each country, but clearly situates at least some of the appointment power in the judiciary.
The executive held the appointment power in the UK process before 2005. The Crown made judicial appointments on the advice of the prime minister, with the primary responsibility lying with the lord chancellor. The lord chancellor recommended nominees to the prime minister after consulting with various members of the bar and the judiciary. In one case Prime Minister Margaret Thatcher refused to accept Lord Chancellor Hailsham’s advice over her appointment of John Donaldson as master of the rolls. However, Hanretty found no systematic support for the proposition that appointments were politically motivated.
After the constitutional reforms in 2005, the power to appoint judges to the UK Supreme Court shifted to an independent selection commission. The selection commission includes the president of the Supreme Court, a senior UK judge nominated by the president, and three members nominated by each of the Judicial Appointments Commissions for Scotland, Northern Ireland, and England and Wales, respectively. At least two members nominated from the Judicial Appointments Commissions must be non-legally qualified.
During the selection process, the commission must consult specific senior judges, the lord chancellor, and the first ministers of Scotland, Wales, and Northern Ireland, before recommending a single candidate to the lord chancellor. The lord chancellor is then also required to consult with the same individuals before deciding whether to notify the prime minister of the commission’s selection, reject the selection, or require the commission to reconsider. The lord chancellor has only one opportunity to ask the commission to reconsider, and one opportunity to reject a candidate. If a lord chancellor chooses to reject or require reconsideration of a selection, he must provide written reasons to the commission. No lord chancellor exercised his power to reject a selection for appointment to the Supreme Court, or require its reconsideration as of 2013.
Israel provides an alternative example of a committee process. A candidate for appointment to the Israeli Supreme Court must receive the approval of seven members out of a nine-member Judicial Selection Committee. The candidate is then formally appointed by the president. The Judicial Selection Committee includes the president of the Supreme Court, two other Supreme Court judges who are elected by the Supreme Court, the minister of justice, another minister designated by the government, two members of the Knesset (the legislature) who are elected by secret ballot, and two elected representatives of the Chamber of Advocates. The two members of the legislature typically include one member from the opposition party. The minister of justice, the president of the Supreme Court, or any three Committee members can nominate candidates. The president is, by convention, the most senior judge on the bench and the deputy president is the next most senior judge. The Knesset has used legislation to increase its influence in the composition of the Court. For example, in
2011, anticipating the retirement of President Dorit Beinisch on her seventieth birthday, the Knesset passed a law cancelling the requirement that a potential president have at least three years remaining until mandatory retirement. This law, dubbed the “Grunis Law" permitted Justice Asher Grunis (who was seen as less activist than Beinisch and her predecessor, Aharon Barak) to become the next president.
Interestingly, the minister of justice, with the consent of the chief justice, can temporarily appoint candidates to the Israel Supreme Court. Temporary appointment serves in effect as a probationary period, enabling the Appointment Committee to assess the nominees before they are permanently appointed to the Court. As we will see, it may also make the temporary appointees less willing to dissent because of the power that their colleagues hold over their career. The vast majority of District Court judges who have been promoted to the Israel Supreme Court were first appointed temporarily.
In effect both the UK and Israel have provided more power in the appointment process to a broader range of parties, in particular the judiciary. In the UK, the executive and the judiciary now share the power of appointing judges to the Supreme Court. In addition, members of the public also influence the appointment process as non-legally-qualified members of the commission. In Israel, the judiciary arguably has even greater power as the requirement for a nominee to receive the vote of seven of nine members of the selection committee effectively gives veto powers to the Supreme Court judges who have always voted as a bloc. As we will see, India is also moving in the direction of a committee approach, although from the opposite extreme of almost complete power in the judiciary.
-  Burton Atkins, “Judicial Selection in Context: The American and English Experience”(1988-89) 77 Kentucky LJ 477 at 591.
-  Chris Hanretty, “Political Preferment in English Judicial Appointment, 1880-2005”(2012) American Political Science Association 2012 Annual Meeting Paper 1 at 7, 11 [Hanretty,“Political Preferment”].
-  The Supreme Court (Judicial Appointments) Regulations 2013, SI 2013/2193, s 11 [SC (JudicialAppointments)].
-  SC (Judicial Appointments), supra note 43, s 13(3).
-  Constitutional Reform Act 2005 (UK), c 4 [CRA], ss 27-28.
-  CRA, supra note 45, ss 28-29.
-  CRA, supra note 45, ss 29-31.
-  CRA, supra note 45, s 30(3).
-  Charles Banner, “Judicial Appointments in the Senior Courts: A Perspective from theUnited Kingdom” (2013) University of Hong Kong Faculty of Law Occasional Paper No 22,online: http://www.law.hku.hk/ccpl/pub/0P%20No%2022%20Charles%20Banner%20V5.pdf at 11.
-  Richard A. Posner, “Judicial Review, a Comparative Perspective: Israel, Canada, and theUnited States” (2010) 31 Cardozo Law Review 2393 at 2396 [Posner, “Judicial Review”].
-  Basic Law: The Judiciary 1984, s 4(b).
-  Posner, “Judicial Review,” supra note 50 at 2397.
-  Courts Law 1984 (Consolidated version), s 7(b).
-  “Knesset Approves ‘Grunis Law’”, Israel National News (March 1, 2012), online: http://www.israelnationalnews.com/News/News.aspx/151335#.VVtiaUs3RD4.
-  Binyamin Blum, “To Concur or Not to Concur, That Is the Question: Theoretical andPractical Question Regarding the Judicial Independence of Judges Appointed Temporarily tothe Israeli Supreme Court” (Masters Thesis, Stanford Law School, 2006) [unpublished], at 7[Blum].
-  Blum, supra note 55 at 8.
-  Blum, supra note 55 at 8.
-  Posner, “Judicial Review,” supra note 55 at 2398.