APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER

Vol. 16 No. 9 (September, 2006) pp.664-667

APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD, by Kate Malleson and Peter H. Russell (eds). Toronto: University of Toronto Press, 2006. 450pp. Cloth. ₤48.00/$90.00. ISBN: 0802090532. Paper. ₤22.00/$45.00. ISBN: 0802093817.

Reviewed by Christine L. Nemacheck, Department of Government, The College of William & Mary. Email: clnema [at] wm.edu.

In their book, APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD, editors Kate Malleson and Peter Russell provide a thorough overview of judicial appointment systems in established, western democratic systems (Scotland, England and Wales, Canada, the United States, New Zealand, Australia, the Netherlands, Italy, France and Germany), international courts, and emerging democracies as well as transitional states (Israel, Egypt, South Africa, Namibia, Zimbabwe, Japan and Southeast Asia, Russia, and China). As the book’s title implies, the method of judicial appointment employed in a country in which there is an active judiciary, especially one with the power of judicial review, is often subject to greater scrutiny than is the case in systems in which the judiciary is more passive and lacks the authority of reviewing statutes or actions of a powerful, autocratic executive or even a popularly elected legislature. What these many (19) accounts of judicial appointment systems around the world demonstrate is that certain issues are prominent regardless of the appointment method used, and that a country’s culture, experiences, and institutional political structure influence the mechanisms of judicial appointment and its citizens’ assessments of the judiciary’s legitimacy.

In her introductory chapter, Kate Malleson lays out several important questions prominent in the judicial appointment literature. These include the tension between judicial independence and accountability, the desire to enhance diversity (by any number of definitions) in the judiciary, and the importance of merit criteria in the selection process. Malleson emphasizes that countries at differing stages of democratic development and with judiciaries that are more or less well established have a different set of concerns in terms of their judicial appointment system, and these concerns cannot be divorced from the country’s culture, history, and institutional structure.

Particularly interesting in the chapters that follow is the varying emphasis on the themes laid out in the introductory chapter and the way these issues are addressed under different institutional structures. For example, the attention of those studying judicial appointments in established democracies such as the United States, Canada, and Australia is more likely to be focused on questions of diversity in terms of the degree to which the judiciary is perceived to be representative of the population. This may be seen as particularly important in [*665] situations in which the judiciary is considered activist, willing to overturn the actions of a popularly elected legislative and/or executive branch. However, in cases where the judiciary is part of a developing democracy, perhaps one emerging from colonial rule, such as South Africa and Zimbabwe, attention may be directed at the more basic issue of judicial independence in order to attain institutional legitimacy. This is not to say that these countries are not also concerned with developing a judiciary that is representative of their populations, as is certainly important in post-apartheid systems, but the basic question of whether an independent judiciary can exist is prominent in debate.

As in any edited volume, perhaps particularly one of this length and breadth, the editors face the difficult task of synthesizing a variety of perspectives into a coherent and logically progressing whole. Although there are a few cases in which the chapters do not seem to flow together as well as the reader might like, the editors have largely done a good job of keeping the authors focused on the question at hand. The articles might have been more integrated had all of the authors responded to one particular question or concern about the judicial appointment process. However, given that the volume covered such a wide variety of judicial appointment systems at such different stages of development or revision, focusing more narrowly on a particular question would have been difficult.

As mentioned above, diversifying the judiciary is often an important concern in making judicial appointments. In almost all systems considered in the book, there has been or is currently an effort to increase gender and/or racial diversity on the bench. Even those systems in which the primary concerns center upon judicial independence, efforts aimed at increasing diversity seem to be present. However, in addition to gender and racial diversity, some systems are also concerned with addressing whether the judiciary is diverse with respect to professional background, a topic of discussion in the most recent United States Supreme Court appointments. On this point there is obvious difference between appointment systems relying on the European model of a career judiciary, as in France, and systems based on the US model of appointing judges from a variety of law-related career paths, or a combination, as in the Netherlands.

In their analyses, the contributors do a good job of consistently tying the experiences of each country to their present problems in achieving diversity on the bench. For example, although there is concern with increasing racial diversity across judicial appointment systems, many have also had a history of severe discrimination against women. The authors consistently refer to a “trickle-up” approach to gender diversity on the bench. This theory asserts that as society becomes more inclusive and women make up a larger percentage of those in careers from which judges are typically appointed, or matriculate through legal programs in countries with a career judiciary, we will naturally see more gender equity on the courts. However, as several contributors note, [*666] even as the pool of women available for appointment increases, we do not consistently see a rise in their representation on the bench. And, in some systems, attention is not directed so much at gender and racial parity as it is other forms of diversity. For example, in international courts as well as federal and provincial systems, contributors stress that geographic diversity and maintaining representation of member countries and/or states is often paramount.

Concerns about increasing diversity while also making appointments based on merit get greater attention in some, but it is an issue that seems to carry across judicial appointment systems in democratized countries as well as transitional states and emerging democracies. Underlying the concern over qualifications is the fact that merit itself is a culturally bound concept, and the way in which any country defines merit has important implications for appointments. Although the definition of “merit” is cultural and may vary even within a country depending on whether an appointment is being made to a trial or constitutional court, the contributing authors note that, overwhelmingly, those who make judicial appointment decisions try to ensure that their judges are qualified. They do this through a variety of methods, including competitive exams and specialized judicial training as in Spain, Germany and France, (or solely by competitive exams in Italy), or by mandating substantial prior legal experience, as in Japan. Should the exams or training programs be skewed against women or minorities, of course, these definitional criteria may well result in continuing low gender diversity on the bench.

One clear trend that emerges across the contributors’ discussions is the use of judicial appointment commissions that either recommend candidates to the executive or make what amount to binding decisions on judicial appointments. F.L. Morton, in his chapter on the Canadian judicial appointment system, does an especially good job in dealing with the question of whether this reduces the role of politics in the appointment process. Morton quotes V.O. Key’s “iron rule of politics,” that “where power rests, there influence will be brought to bear.” The theory is particularly appropriate in relation to the judicial appointment commission which, as editor Peter Russell notes in the concluding chapter, is the most frequently used approach by countries revising their judicial appointment systems. He presents a strong argument that, rather than eliminating politics, the use of such commissions may simply shift the points where politics can enter the process from the appointment of judges, to the appointment of commissioners.

Another possibility with such nominating commissions is that the locus of appointment power may appear to have shifted, but in fact still remains with a single executive who can control the process without institutional check on his authority. Derek Matyszak’s discussion regarding appointment by the Judicial Services Commission in Zimbabwe provides a good illustration of this outcome. In Zimbabwe, the president appoints Supreme and High [*667] Court judges after consulting with the Judicial Services Commission and must inform Parliament if his appointment is not in line with the Commission’s recommendation. Although this structure implies that the Commission’s recommendations are taken seriously and there is outside input into the process, the president appoints up to four of the six Commission members either directly or by virtue of the member’s executively appointed position in the administration (for example the attorney general). Thus, the use of such nominating commissions is not necessarily a solution to the unfettered appointment power of the executive.

Overall this book provides a comprehensive overview of judicial appointment systems and the typical issues confronted by countries attempting to reform their methods of judicial selection around the world. The book’s coverage of a wide variety of judicial systems is a welcome addition to the literature on judicial appointments. Not only do the editors compile chapters on civil and common law systems, but they also include an analysis of appointments to increasingly important international courts, career and elected judicial systems, and those with and without the important power of judicial review. The chapters generally present a short summary of the judicial system within each country, and the themes presented would provide for ample discussion in either graduate or undergraduate courses. In short, Malleson’s and Russell’s book will be an excellent addition to courses on comparative judicial systems, a topic that is rightly gaining attention among judicial politics scholars.

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