“Should we all have a say on who sits on the Supreme Court?”
08 Thursday Oct 2009
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In an article in today’s Times with this provocative headline, long time legal columnist and top court advocate par excellence David Pannick QC (now Baron Pannick of Radlett) raises the question of whether appointments to the Supreme Court should be the subject of wider public debate. The measured content of the article hardly justifies the headline – Lord Pannick is not suggesting choice of justices by referendum, but simply wider public discussion. Like most English commentators he is strongly against the idea of confirmation hearings like the recent hearings concerning Judge Sotomayor (pictured right).
His conclusion seems to us to be an obviously sensible one to the effect that public appointments are matters of proper public debate:
Discussion about judicial appointments need not be fatuous or politically partisan. The powers enjoyed by the Supreme Court make it an ever-increasing anachronism that the appointment process involves less public analysis than a parliamentary by-election or a contest to become deputy leader of the Labour Party. For the past few months, lawyers have been discussing the prospects of potential candidates for the judicial posts. The non-legal community will soon want to join in the debate, and should be encouraged to do so.
The obvious question is what form should this public debate take. The spectre of “judicial confirmation hearings” and the politicisation of the appointment process has been raised on a number of occasions over recent weeks. We refer for example, to Frances Gibb’s recent Times article “Supreme Court opens as fears raised of US style selection of judges”.
In an interesting recent lecture entitled “Selecting Judges: Merit, Moral Courage, Judgment and Diversity” newest Supreme Court Justice Lord Clarke (then Master of the Rolls) addresses the whole issue of judicial appointments his title reflecting the qualities which he believes a selection and appointment process should be looking for. It is hard to disagree although the absence of any “public element” in the process does, inevitably, raise questions about transparency and public confidence.
We hope to contribute to this debate in the future.
