Supreme Court judge row: Here's how apex court judges are appointed in some of other democracies in the world

In India, of late, there has been an on-going tussle between the judiciary and the government. From the Opposition moving an 'impeachment motion' against the Chief Justice of India, to a row over the appointment of Supreme Court judge, Indu Malhotra. But, while in India the process to appoint a Supreme Court judge is fairly democratic, here's a look at how the top judiciary appointments are done in some of the other countries across the globe.

File image of Supreme Court. Reuters

File image of Supreme Court of India. Reuters

In the United States of America, Article 2 of their Constitution requires the President of the United States to nominate Supreme Court Justices and, with Senate confirmation, requires Justices to be appointed. So, upon the election of a new President, incoming White House staff prepare profiles of possible candidates for the Supreme Court, considering not only judges but also politicians and other individuals whom they consider appropriate for the role.

Besides considering national figures whose views are well-known, they consider others who are less recognized. They go through published rulings, articles, speeches, and other background material to get an idea of candidates' values and views on constitutional issues. Age, health, race, gender, and likelihood of confirmation are also factored into considerations.

Once a Supreme Court vacancy opens up, the president discusses the candidates with advisors. Senators also call the president with suggestions. After a first choice is decided, the candidate is contacted and called on by the president to serve on the highest court. Staffers send a vetting form for the candidate to fill out. They visit the candidate to go over tax records and payments to domestic help. Candidates whom the president has never met are interviewed by White House officials before being sent to the White House to be interviewed in person by the president. After making a final decision, the president calls the candidate, who is told to prepare a statement for an appearance in front of the national press for the president's formal announcement.

The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on potential cases that may come before the Court. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report

Once the Committee reports out the nomination, the whole Senate considers it. A simple majority vote is required to confirm or to reject a nominee. Prior to 2017, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favour of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history.

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House. The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office. The date of commission determines a Justice's seniority. A ceremony is held in which the Justice must take the Constitutional Oath, which is used for every federal and state officeholder below the President, and the Judicial Oath used for federal judges before entering into the execution of their office.

Whereas in Australia, where The High Court of Australia is the supreme court in court hierarchy, appointments are officially made by the Governor-General in Council. In practice, appointees are nominated by the prime minister, on advice from the Cabinet, particularly from the Attorney-General of Australia. The Court is composed of seven Justices: the Chief Justice of Australia and six other justices.

Since 1979, the attorney-general has been required to consult with the attorneys-general of the states and territories of Australia about appointments to the court. His ministerial colleagues may or may not agree to appoint his nominee, and may overrule him.

There are no qualifications for Justices in the Constitution other than that they must be under the compulsory retirement age of 70. The High Court of Australia Act 1979 requires that appointees have been a judge of a federal, state or territory court, or that they have been enrolled as a legal practitioner for at least five years with either the High Court itself or with a state or territory Supreme Court. There are no other formal requirements.

On the other hand, in Mexico, only the Constitution regulates appointments of Supreme Court justices. Article 96 of the Mexican Constitution establishes that: In order to appoint Justices to the Supreme Court of Justice, the President of the Republic shall submit three candidates to the Senate. The latter, upon the previous appearance of the individuals proposed, shall designate the one of them, who shall fill the vacancy. The appointment shall be made by the vote of two-thirds of the Senators present in the respective session, within a term of thirty days which may not be extended. Should the Senate not decide within such term, the position shall be filled by the individual appointed by the President of the Republic from the aforesaid group of three candidates previously submitted. In the event that the Senate should reject all three candidates proposed, the President of the Republic shall submit a new group of three candidates under the terms of the previous paragraph. Should this second group of candidates be also rejected, the position shall be filled by the individual appointed by the President of the Republic from the aforesaid group of three candidates proposed.

In Japan, however, the Chief Justice is nominated by the Cabinet and appointed to office by the Emperor. The associate justices are appointed by the Cabinet in attestation of the Emperor. After the appointment, Supreme Court justices are subject to a "people's review": an automatic retention referendum in which the voters may remove the judge from office. A people's review occurs at the first election to the House of Representatives after a justice assumes office when the question of whether his tenure should continue is put to voters on the ballot.

Justices of the Supreme Court of Canada are appointed by the Governor-General-in-Council, a process whereby the governor-general, the viceregal representative of the Queen of Canada, makes appointments based on the advice of the Queen's Privy Council for Canada. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the prime minister. Thus, the provinces and parliament have no formal role in such appointments, sometimes a point of contention.

The prime minister still has the final say on who becomes the candidate that is recommended to the governor general for appointment to the Court. As of August 2016, Prime Minister Justin Trudeau opened the process of application to change from the above noted appointment process. Under the revised process, "Any Canadian lawyer or judge who fits a specified criteria can apply for a seat on the Supreme Court, through the Office of the Commissioner for Federal Judicial Affairs." A Supreme Court Justice, as with all federal judges, may sit on the bench until age 75, at which age retirement is mandatory.

Meanwhile, in monarchies like the United Kingdom, Judges of the Supreme Court are appointed by The Queen by the issue of letters patent, on the advice of the prime minister, to whom a name is recommended by a special selection commission. The prime minister is required by the Constitutional Reform Act to recommend this name to the Queen and not permitted to nominate anyone else. Once the commission is formed, there are a number of people it is required to consult. And once the commission has selected a nomination to make, this is to be provided in a report to the Lord Chancellor, who is then required to consult the judges and politicians already consulted by the commission before deciding whether to recommend (in the Act, "notify") a name to the prime minister, who in turn advises the Queen to make the appointment. The Act provides for up to three stages in the Lord Chancellor's consideration of whether to do so:

When the selection is first put forward, the Lord Chancellor is entitled to accept the nomination, to reject it, or to ask the commission to reconsider it. If the nomination was rejected in stage one, the commission must put forward a new name for stage two. The Lord Chancellor must either accept or ask the commission to reconsider. If instead, the Lord Chancellor asked for reconsideration at stage one, the commission may either put forward the same name or a new one. In either case, the Lord Chancellor must either accept or reject the name. In other words, the Lord Chancellor has one opportunity to reject and one to ask for reconsideration.

At stage three (ie when the Lord Chancellor has both rejected and asked once for reconsideration), the name put forward by the commission must be accepted and forwarded to the prime minister, with one caveat: In the event the commission was asked to reconsider a name and then forwarded a new name, the Lord Chancellor may choose to accept the earlier name. Here, members of the Parliament too have the opportunity to actively participate in the appointment process and directly engage with the nominee — before she or he is appointed to the Supreme Court.


Updated Date: Apr 27, 2018 14:29 PM

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