How Supreme Court judges are chosen

5 December 2016

“A candidate [for the US Supreme Court], who has already been heavily vetted by White House staff and the security services, and interviewed by the President, before his or her nomination, is then required to take part in an exhaustive ‘confirmation’ process which spans several months… compare and contrast, if you will, this great exercise in democratic accountability with the secretive and opaque process via which we in Britain select new members of our Supreme Court. These 11 Justices, who earn £212,000 a year, are, like their American counterparts, granted extraordinary powers to shape our everyday lives”.

Daily Mail, 5 December 2016

There are significant differences in how Supreme Court justices are appointed in the USA and UK. The Mail is correct that the former is more “democratic”, in the sense that elected politicians make the decision. A supporter of the British approach might retort that our system is more independent, in that members of the court are selected on their legal merits rather than for their political views.

While the comparison is interesting, the US Supreme Court is different to its UK counterpart. Because the United States has a written constitution, the Supreme Court has the power to declare laws unconstitutionalwhich means overruling elected lawmakers. A decision of our Supreme Court on UK law can always be reversed by Act of Parliament. So our judges ultimately aren’t as powerful as in the US.

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US Supreme Court appointments are profoundly political

It’s the US constitution of 1787 that gives politicians so much say over the appointments of Supreme Court justices. It says that the President nominates justices “by and with the advice and consent of the Senate”.

The Library of Congress states that while quality of nominees is a recurring theme in the confirmation process, “politics also has played an important role”. US Presidents tend to nominate a candidate that is both qualified and politically like-minded.

As the Mail describes, the process can be gruelling. Background checks are carried out by senior government officials and the FBI. The President’s nominee will be called before the Senate Judiciary Committee (a rough UK equivalent might be the Justice Select Committee) for a confirmation hearing that will explore his or her legal and political views. The full Senate will then vote on the appointment, often following the recommendations of the Judiciary Committee on whether to reject or confirm the nominee. The Senate confirmation process can take several months.

Once appointed, a US Supreme Court justice can stay on the court for the rest of his or her life. He or she can choose to step down: the most recent justice to do so was John Paul Stephens, who retired in 2010 at the age of 90 having spent 35 years on the bench. Others, like Antonin Scalia, die in office.

Compare and contrast with the UK system

In the United Kingdom, the government is minimally involved in selecting Supreme Court justices, and the legislature is not involved at all (beyond passing the law that governs the appointment process in the first place).

The Lord Chancellor, who is also the Minister for Justice, sets the wheels in motion by calling a selection commission together. Unlike in the US, candidates apply for the job rather than being nominated, and are interviewed by the selection commission.

It’s chaired by the incumbent President of the Supreme Court. He or she nominates a senior judge who isn’t on the Supreme Court to sit on the panel, alongside a representative from the separate judicial appointments committees for England and Wales, Scotland, and Northern Ireland. At least one of these has to be a non-lawyer. The Mail says that it has details of the people who have sat on recent selection commissions.

The selection commission largely does its job how it sees fit, although the Lord Chancellor can issue guidance. He or she also has the power to “ask the commission to think again if he considers that the candidate that they have recommended is not appropriate”, as a former Supreme Court President put it, or to reject the nominee outright.

These powers haven’t yet been used, and there are concerns that they may not be usable in practice. Academics writing in 2014 pointed out that the Lord Chancellor may be reluctant to signal that the government doesn’t have confidence in a candidate when that person “would, in all likelihood, already be a very senior serving judge”.

Technically the Queen appoints Supreme Court justices on the advice of the Prime Minister. But since the Queen always acts on the advice of her ministers, and the Prime Minister is obliged by law to recommend the person chosen by the selection process, there is in practice no way for either one to object to an appointment at this stage.

Justices who were first made a judge after 31 March 1995 have to retire at 70; those who were already judges on that date can stay on until 75. At least half of the 12 places on the UK Supreme Court will need to be filled in the next two or three years.

One final detail

The Mail’s figure for UK Supreme Court salaries is wrong. The justices earn £215,000 a year, not £212,000, and the President gets £223,000.

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