imagine what kind of justices a President Hillary Rodham Clinton would have appointed
This may be perceived as an attack on the American system of government, but the more I read about the SCOTUS, the more I wonder whether it is the procedure for appointing federal judges that is flawed. I appreciate that many Americans, including some on these forums, are sensitive to any criticism of the United States, so allow me first to say that the American system of government has many excellent features. In the 1990s, I was largely impressed by Jonathan Freedland’s book
Bring Home the Revolution.
In the UK, it was announced last week that Ben Stephens is to become a justice of the Supreme Court on 1 October following the retirement of Brian Kerr on 30 September. Stephens was chosen by a selection commission convened by the Lord Chancellor. The commission was chaired by the president of the Supreme Court. The other members included a senior judge, who in this case was Declan Morgan, the Lord Chief Justice of Northern Ireland; a representative of the Judicial Appointments Board for Scotland, Nicola Gordon, an engineer; a representative of the Judicial Appointments Commission for England and Wales, Ajay Kakkar, a surgeon; and a representative of the Northern Ireland Judicial Appointments Commission, Lindsay Todd, a former partner of PricewaterhouseCoopers. The commission will have reached its decision in consultation with other senior judges: from the UK, the justices of the Supreme Court; from England and Wales, the Lord Chief Justice, Master of the Rolls, Presidents of the Queen’s Bench and Family Divisions, and Chancellor of the High Court; from Scotland, the Lord President of the Court of Session and Lord Justice Clerk; and from Northern Ireland, the Lord Chief Justice (in this case already a member of the commission). They will also have consulted the Lord Chancellor, the first minister of Scotland, the first minister of Wales, and the Northern Ireland Judicial Appointments Commission. The Lord Chancellor will then have communicated the commission’s decision to the prime minister, who in turn communicates the decision to the Queen, who makes the appointment.
As mentioned, each of the UK’s three legal jurisdictions, England and Wales, Scotland, and Northern Ireland, has a commission or board for judicial appointments. The England and Wales commission also appoints some UK-wide judges. Its 15 members represent the judiciary and the legal professions as well as laypeople drawn from fields as diverse as Parliament, the Civil Service, the Church, medicine, and the arts.
The system that we have is designed to produce a judiciary appointed solely on the basis of merit. There is no such thing as a conservative judge or a liberal judge, a Tory judge or a Labour judge. We do not have to predict what kind of judges Boris Johnson or Keir Starmer would appoint or wonder who would have been appointed if Jeremy Corbyn had become prime minster.