5.2.6.2 The Appointment of Judges
The appointment of judges is a sensitive issue because their ability and impartiality directly affect the fairness of trials.
There are two methods for appointing judges, as illustrated by the contrast between the British and American systems:
● The British system relies upon existing judges to select new ones. There is an obvious risk that the judiciary becomes a self-perpetuating elite, not representative of the population as a whole, but the issue of Judicial Diversity is being actively addressed.
● American judges are political appointees. They are elected in some American States, and they have been accused of harsher sentencing when they are coming up for re-election – as reported in an Economist article, New research confirms old suspicions about judicial sentencing.
● The same article noted that some judges ask for donations towards their election campaigns, so their impartiality might be compromised and make them vulnerable to corruption.
It is important that the judiciary is acceptable to, and is respected by, the people – and ideally it should be free from political interference, as discussed later (5.2.8).
The appointment of judges to the American Supreme Court is politically very sensitive, as described in an AEI article: Trump’s Supreme Court pick and what it means for 2020. The article noted that his options, to boost his political support, included “Going with region or diversity” or “Going with judicial ideology”; it quoted several examples of how previous presidents had chosen judges.
Another crucial aspect in the appointment of judges is that they might be the last line of defence against corruption, as discussed later (7.2.5). Whilst it is impossible to prevent corruption in the judiciary, it is less likely if judges have generous incomes, if they are not allowed to influence the appointment process and if there is a higher court to appeal to (5.2.6.4).
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/5262a.htm.