Judicial Appointments and the Integrity of Apex Courts

2024 was a significant year for democracy. More people were eligible to vote in national elections than ever before. Countries that went to the polls included Brazil, Ghana, India, Indonesia, Ireland, Mexico, Pakistan, Russia, South Africa, Sri Lanka, the United Kingdom and the USA.  Yet, despite all these elections, democracy undoubtedly remains in decline. The V-Dem Democracy Report 2024 (which reports on 2023) reports that across all its metrics, the level of democracy appears to be down to levels last seen in 1985, before the fall of the Berlin Wall. And the world is now almost evenly divided between democracies (91) and autocracies (88).

We know too that the pattern of democratic decline over the last two decades has been different from democratic decline in earlier years. As Nancy Bermeo observed, by and large we are seeing fewer coups d’état (although of course there has been a recent resurgence of them in the Sahel). Instead, we are seeing more examples of executive aggrandisement in which “elected executives weaken checks on executive power one by one”.  As Kim Lane Scheppele put it, elected would-be autocrats “use their democratic mandates to launch legal reforms that remove the checks on executive power, limit the challenges to their rule, and undermine the crucial accountability institutions of a democratic state.“

Often the first institution that autocrats seek to undermine is the judiciary (and in particular apex courts) and the difficult challenge for those who seek to protect modern constitutional democracies is to know what to do to protect them.  It is perhaps not surprising that judiciaries are an early target given that one of the characteristics of contemporary constitutional democracies is the expanding power of the judicial branch.  The techniques for undermining apex courts are various: shortening judges’ terms of office, for example, by introducing earlier retirement ages, expanding the number of judges on the apex court (“court packing”), and seeking through appointments to ensure that judges are appointed who will be less likely to hold the other arms of government to account.

The susceptibility of the judiciary to being undermined by the executive or legislature partly arises as a result of what we might call the enigma of judicial power, aptly captured by Daniel Brinks and Abby Blass in the following terms: “Courts are never independent if by that we mean they are fully insulated from their social and political context; and they are never powerful if by that we mean that they can produce results without the cooperation of outside social or political actors.”

Contested Appointment Processes

It is this enigmatic or paradoxical relationship between the judiciary and social and political actors which renders judicial appointment processes especially politically salient, and, often, intensely contested. Examples include

• the contestation in the United States that often arises during the Senate’s confirmation hearings relating to the President’s nominees to the Supreme Court;
• the wrangling in India between the judiciary and the legislature and executive over appointments to the higher judiciary which culminated in 1993 with the Supreme Court holding that judicial independence means that the judiciary should have the dominant say over judicial appointments, with the consequence that the five most senior judges of the Supreme Court (the collegium), in effect, control judicial appointments to the Supreme Court;
• the recent controversial constitutional amendment in Mexico promulgated by President Obrador in September 2024 which provides for the popular election of judges, including judges of the Supreme Court; and
• contestation in South Africa over the processes followed by the Judicial Service Commission in relation to judicial appointments which has resulted on several occasions in litigation.

Judicial appointment processes vary widely across modern democracies. Some democracies retain the longstanding practice of executive appointment of judges without any public disclosure of how candidates are selected, others, like the United States, vest nomination and/or appointment in the political branches of government, and others, like Mexico (and some US states), provide for popular election of judges. Increasingly common in the third wave of constitutional democracy are judicial appointment committees.  The term “judicial appointment committee” may mask the fact that the composition of judicial appointment committees and the processes they follow in effecting appointments vary widely.  Some are small bodies, dominated by the judiciary, the legal profession or lay members of the public, and others are larger, comprising representatives of different sectors of society, and may include judges, members of the executive and/or legislature and members of the legal profession and civil society. Some judicial appointment committees call for nominations and interview candidates in public, while others act in a much less publicly transparent manner.

Although constitutions (or legislation) often provide for the institutional mechanism for judicial appointment, they often provide little guidance as to the criteria for judicial appointment and the process to be followed in judicial appointments.  Yet the questions of criteria for appointment and the process to be followed in making appointments are questions that every appointing mechanism must address. As Scott Stephenson has noted these aspects of judicial appointment are often governed by unwritten constitutional conventions or norms, which contribute to the judiciary’s “state of permanent vulnerability.”  The fact that both the criteria for appointment and the processes that govern appointment are not explicitly regulated in constitutional texts means that these crucial aspects of judicial appointment are often overlooked in public debates about appointment. In being overlooked, the door is often left open to the use of appointments as a tool to undermine judicial independence, impartiality and expertise.

The Constitution Hill Guidelines

It is this gap in current debates that the Constitution Hill Global Guidelines on Apex Court Appointments seek to address. The Guidelines address four issues: the structural role and characteristics of apex courts, criteria for the appointment of judges to apex courts, procedures for their appointment and the conditions of service and tenure of apex court judges. On criteria for appointment, the Guidelines identify both individual and collective criteria for appointment. Individual criteria include criteria of inclusion based on character and merit, as well as criteria of exclusion based on past conduct, maximum age thresholds and conflicts of interest. Collective criteria focus on the importance of diversity amongst the judges on an apex court, and include viewpoint diversity, professional diversity and demographic diversity. The six individual criteria of character pinpointed in the Guidelines are integrity, composure, impartiality, independent mindedness, courage and collegiality, and the six criteria of merit are expertise, diligence, intellectual ability, contextual knowledge, inventiveness and prior experience.  These criteria should of course be subject to public debate, and the Guidelines seek to instigate that debate, but also to contribute to it, by asserting specific legitimate considerations for appointment. By asserting these principles for appointment, the Guidelines seek to ensure that suitable candidates for judicial office are appointed.

As to the process to be followed for appointment, the Guidelines stipulate that appointment processes should be fair, rigorous and transparent. The Guidelines propose that the process should include an application and nomination procedure, an interview and vetting procedure and a selection procedure. The Guidelines acknowledge that these procedures may be administered by a single body, such as a judicial appointments committee, or by several institutions responsible for different elements of the process (for example, nomination, on the one hand, and interview and selection on the other).  The Guidelines also propose that distinguished impartial lay persons and members of the judiciary and legal profession should have some role in the appointment process. On participation of members of the executive and legislative branches of government in the process, the Guidelines state that: “Appointment procedures for an Apex Court are vulnerable to accusations of politicisation that can jeopardise public trust in the court and weaken its structural role as an independent check on the other branches of government. This can be mitigated by appointment procedures in which the role of the executive branch, where included, is not dominant and is limited to the final selection; and in which legislative participation, where included, is cross-partisan and limited in scope.”

In a world in which democracy appears to be in retreat, and attacks on the judicial branch of government, especially apex courts, are depressingly on the rise, the Constitution Hill Global Guidelines on Apex Court Appointments seek to turn our attention to two key aspects of judicial appointments (the criteria for appointment and the process to be followed) that are too often unexamined. If we do not pay attention to these aspects of judicial appointments, the consequence may well be that it will be it more possible for would-be autocrats to identify unsuitable candidates for appointment in processes that are not subject to public scrutiny. Given the crucial role that judiciaries play in many democracies, the qualities we should be looking for in candidates for judicial appointment, and the processes whereby those appointments should be made, are pressing questions that warrant serious debate. In putting forward clear proposals on the criteria and processes of judicial appointment, the Constitution Hill Global Guidelines should enable wider debate on these important issues.