Malleson, Kate

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 44, Number 3 (Fall 2006) Article 7Parliamentary Scrutiny of Supreme CourtNominees: A View from the United KingdomKate MallesonFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljPart of the Judges CommonsCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMalleson, Kate. "Parliamentary Scrutiny of Supreme Court Nominees: A View from the United Kingdom." Osgoode Hall Law Journal44.3 (2006) : 557-563.http://digitalcommons.osgoode.yorku.ca/ohlj/vol44/iss3/7CommentaryPARLIAMENTARY SCRUTINY OFSUPREME COURT NOMINEES: AVIEW FROM THE UNITEDKINGDOM©KATE MALLESON*The questioning of Supreme Court nominee Justice MarshallRothstein before an ad hoc parliamentary committee in March 2006 wasa momentous event in Canadian constitutional history. It was followedwith great interest by many common law countries who are alsograppling with the problem of how to ensure greater transparency andaccountability in the selection of their increasingly powerful judgeswithout undermining judicial independence. A key recurring theme inthese debates is whether Supreme Court judges should be subjected topublic scrutiny either before or after their appointment by thelegislature. For many countries considering such a procedure, theexperiences of the U.S. Senate Judiciary Committee confirmationhearings have cast a long shadow. The criticisms provoked by thequestioning of Robert Bork and Clarence Thomas, in particular, haveundermined the reputation of such hearings around the world. Concernsabout the U.S. precedent loomed large in the recent Canadian debateon judicial appointments. Perhaps because the powerful neighbour isgeographically closer and thus much more familiar, these concerns weresubject to more critical scrutiny in Canada than they had beenelsewhere.This scrutiny reveals that the danger public questioning poses tothreatening judicial independence and invading candidates' privacy isperhaps over-stated. The fact that a small number of high profile© 2006, Kate Malleson.Professor of Law at Queen Mary, University of London.OSGOODE HALL LAW JOURNALhearings in the United States have attracted criticism does not meanthat the system itself is inherently flawed. In reality, most Senateconfirmation hearings are relatively restrained affairs; indeed, they havesometimes been criticized for verging on the bland. However, theweaknesses of the confirmation process that currently occupyacademics, judges, and politicians in the United States are much lessabout the content of the hearings than the political manipulation of theprocedure leading to excessive delays and leaving judicial posts unfilled.1Furthermore, even if the hearings in the United States have sometimesdegenerated, there is no reason to assume that this would necessarily bereplicated elsewhere. Perhaps the best-known feature of the U.S.constitutional system is that its Supreme Court occupies a uniquelyimportant place in the constitutional order. As a result, U.S. SupremeCourt judges are not regarded as jurists occupying a place where theymust be shielded from the "hurly-burly" of political life. Recently,Sandra Day O'Connor rightly reminded U.S. politicians that there arelimits to the pressure which judges can take if judicial independence isto be preserved.' However, those limits are clearly much less tightlydrawn in the United States than in any other common law country.Another criticism of public hearings for. judicial candidates isthat they undermine the quality of the judiciary by deterring first-ratecandidates from coming forward and facing public scrutiny. No doubtthe anecdotal evidence to support this is real and some individuals havebeen put off by the process. Yet it seems clear that where publichearings are used, the deterrent effect is not sufficient to affect theoverall quality of the judiciary. In South Africa, for example, theintroduction in 1996 of public interviews of constitutional court and highcourt judges by the Judicial Service Commission (a body which includespoliticians) led to widespread fears that good candidates would notapply. This did not happen, and the quality of the Constitutional Courtis widely regarded as being extremely high.3 Moreover, South African' M. Tolley, "Legal Controversies over Federal Judicial Selection in the United States:Breaking the Cycle of Obstruction and Retribution over Judicial Appointments' in K. Malleson &P. Russell, eds., Appointing Judges in an Age of Judicial Power (Toronto: University of TorontoPress, 2006).2 Sandra Day O'Connor, "Address"(Georgetown University, 9 March 2006) [unpublished].' K. Malleson, "Assessing the Performance of the South African Judicial ServiceCommission" (1999) 116 S.A.L.J. 36.[VOL. 44, NO. 3Parliamentary Scrutinyjudges are generally supportive of the system of public interviews,believing that it gives them an opportunity to strengthen publicconfidence in the court. Likewise, U.S. judges, although they certainlywould not claim to enjoy the hearings, have often gone on record insupport of the process as a means of enhancing their legitimacy. Publicinterviews can also offer the less obvious advantage of allowing judges toreveal certain information about themselves in a controlledenvironment. For example, in 1999, Justice Edwin Cameron, an openlygay member of the South African high court and a highly respectedjudge, informed the Judicial Services Commission that he was living withAIDS at his interview for a post on the Constitutional Court Hissubsequent appointment undoubtedly reinforced the commission'sreputation for making non-discriminatory appointments.While these examples show that public nomination orconfirmation hearings do not automatically undermine judicialindependence, invade candidates' privacy, or deter good candidatesfrom applying, the risk of these outcomes cannot be dismissedaltogether. Thirty years ago, most commentators in common law systemswould have concluded that such risks were not worth the benefits interms of increased openness and accountability. However, in light of thechanging role of the judiciary, the cost-benefit equation has now tipped.Around the world the. political power of supreme court andconstitutional court judges has grown in line with the increasingimportance of human rights in the political process. Judges today aredealing with sensitive political issues that repeatedly arise in differentcountries. These include abortion rights, gay rights, aboriginal/minorityrights, the death penalty, and anti-terrorism measures. Across a range ofdifferent countries, with varied court structures, the general pattern hasbeen remarkably similar. While the level of judicial activism has ebbedand flowed within each jurisdiction, the overall trend is one ofexpanding influence. In some countries, including Canada, South Africa,the United Kingdom, and New Zealand, the change has come throughthe formal incorporation of a bill of rights. In others, such as Australia,it has been through the development of rights within the common law.Either way, supreme courts throughout the common law world havebeen given, or taken on, a role in political areas previously outside their4 F. Du Bois, "Judicial Selection in Post-Apartheid South Africa" in K. Malleson & P.Russell, eds., supra note 1, 292.2006]OSGOODE HALL LAW JOURNALremit. There is no reason to believe that this trend will reverse in theforeseeable future. Indeed, if anything, the process of judicialization islikely to accelerate as more countries expand the scope of justiciablerights to include social and economic rights in areas such as housing,health, and employment. The wide range of rights found in documentssuch as the South African constitution and the Charter of FundamentalRights of the European Union is likely to be more frequently includedwithin new bills of rights or inferred into old ones.5If this development continues on its current trajectory, courtsthroughout the common law world will increasingly be called upon todetermine what obligations governments have to provide for theircitizens in a wide range of policy areas. Sometimes the courts may take astrongly deferential line and leave elected governments a wide measureof discretion on these issues; at others times, they may be more activistand impose obligations that have significant policy and economicimplications. Sometimes, as in the seminal South African ConstitutionalCourt decision in 2000 concerning the rights of children to shelter, theymay come up with imaginative ways to uphold basic rights and leave thepoliticians to determine exactly how these are to be implemented.6Whatever the particular outcome in individual cases, such issues arenow more likely to find their way into the courts for their resolution.Supreme court justices are not politicians in wigs; rather, they play acrucial role in the interpretation and development of human rightsstandards around the world. They now make up a global community ofjurists who meet at conferences and read each others' judgments,speeches and articles via the internet.7 They are a powerful body ofdecision-makers whose judgments affect the lives of many citizens inmany different states.Against this background, the traditional point of balancebetween accountability and independence of the judiciary must now berethought. Citizens have a right to be properly informed about thepeople who sit in their top courts and determine controversial issues ofgreat moral and political sensitivity. Judges at this level cannot demandthe anonymity- of earlier years, hiding behind literal or metaphorical' See C. Guarnieri & P. Pederzoli, The Power of Judges (Oxford: Oxford University Press,2002).6 South Africa v. Grootbroom, [2000] S.A.J. No. 57 (S. Afr. Const. Ct.).7 See A.M. Slaughter, "A Global Community of Courts" (2003) 44 Harv. Int'l L.J. 191.[VOL. 44, NO. 3Parliamentary Scrutinywigs. If we accept that some form of public questioning of supremecourt candidates or appointees by elected representatives is necessary toprovide a link to the democratic process and greater public engagementwith the judicial appointments process, then there are strong argumentsfor the legislature as the best forum for this process.The argument for legislative hearings must be placed in thecontext of the decision in a number of common law countries to reduceor remove the power of the executive in appointing senior judges. Thedesire to curb the power of the executive in this area is understandable;as the power of the judges grows, the danger of inappropriate politicalpatronage with a place on the Supreme Court bench as a reward for pastjudgments or anticipated future ones inevitably increases. Partisanpolitical concerns will not, of course, be absent from a hearing before alegislative committee, but the involvement of a number of MPs fromdifferent parties ensures that no one ideological position will inevitablydominate.In Canada, it is clear that the impetus for the introduction ofhearings was as much driven by party considerations as by principle. Forthe Conservatives, scrutinizing judicial nominees holds out the promiseof checking judicial activism. Conversely, questioning before a liberallyminded parliamentary committee might be a means of checking thenomination of an extreme conservative. Clearly it would be naive toexpect that party politics could be removed from the equation, but itspresence does not undermine the sound principled reasons for thechange. Moreover, the composition of a cross-party legislativecommittee will change from appointment to appointment, therebyensuring that the political persuasion of the court cannot be so easilymoulded over time to the interests of one political party. The array ofdifferent interests that will be found on such a committee facilitates amore effective and safer means of addressing the democratic deficitthan exclusive appointment by the executive. The fact thatparliamentary proceedings in different jurisdictions are now increasinglytelevised and accessible worldwide via the internet also means that theproceedings can be conducted in public in a very real sense.The decision in Canada to introduce legislative hearings for theSupreme Court nominees has attracted particular attention in theUnited Kingdom because it coincides with the complete reform of thejudicial appointments process. Under the Constitutional Reform Act2005, the responsibility of selecting the judges for the new SupremeCourt in the United Kingdom has been passed from the Lord2006]OSGOODE HALL LAW JOURNALChancellor to a new judicial appointment commission made up ofjudges and members of the regional judicial appointments commissionsof England and Wales, Scotland, and Northern Ireland. While the legaland political cultures of the United Kingdom and Canada differ indetail, many of the debated issues around judicial appointments in thetwo countries are strikingly similar. The key difference is that whereasCanada favoured accountability, the United Kingdom moved to asystem that prioritizes independence at the cost of democratic input.During the passage of the Constitutional Reform Bill in the UnitedKingdom, a number of witnesses, including myself, argued before theparliamentary Constitutional Affairs Select Committee that one way tocounter the democratic deficit caused by the removal of the executivefrom the appointments process would be to develop a role for thelegislature. The decision of the United Kingdom to reject this option,and of Canada to adopt it, is somewhat paradoxical given that Canadahas no tradition of judges appearing to give evidence before legislativecommittees; by contrast, this is a common and increasingly popularpractice at Westminster.The first Canadian nomination hearing, as might have beenexpected, was successful. The questions were sometimes searching, butnever intrusive, and the session achieved its aim of giving the publicsome sense of Justice Rothstein's views and values. Of course, thespotlight was on the committee, and the members of parliament were ontheir best behaviour. But the success of the first hearing bodes well,particularly since the committee sought to establish the parameters ofacceptable questioning, taking evidence from a constitutional expert onthe subject and making clear that judges should not be asked aboutissues which might come before them at the Court. There is noguarantee that MPs will stick to these rules in all subsequent hearings.Some future sessions may indeed give the candidates a rougher ride.Still this is not an inevitable cause for concern. The nature of thequestions asked will differ according to the particular candidate, asJustice Rothstein himself noted when asked what sort of questions hethought should be put to nominees. What is relevant must bedetermined on a case-by-case basis. In some instances it may beappropriate to ask searching questions which may be uncomfortable forthe candidate. In hindsight, it is less obvious whether the questioning ofthe U.S. nominee Clarence Thomas regarding allegations of sexualharassment was as inappropriate as many critics claimed it was at thetime.[VOL. 44, NO. 3Parliamentary ScrutinyCanada has reason to be proud of leading the common lawcountries in the area of judicial appointments reform by seeking toincrease accountability through the introduction of legislative hearings.The decision in the United Kingdom not to take this route is unlikely tocause any public disquiet for the time being, because the majority of thepublic in the United Kingdom knows little about judges and even lessabout the system by which they are appointed. However, this will changeonce the new United Kingdom Supreme Court is created in 2009, withits own building in Westminster Square, and the Supreme Court justicesare in a much closer position to their Canadian counterparts.Journalists, academics, and politicians will become more aware of thispowerful institution, and questions will be asked about the way itsmembers are chosen. The failure to address the democratic deficit in theselection process to the Supreme Court is likely to become increasinglyproblematic. If the new system in Canada is seen to be successful, havingavoided the failing of the U.S. system, the United Kingdom and othercountries which have rejected this option to date may well change theirminds. Canadian MPs should be aware that they are being watched withgreat interest around the world to see if they can strike that difficultbalance between rigorous and informative questioning on the one hand,and respect for personal privacy and judicial independence on the other.2006]

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Parliamentary Scrutiny of Supreme Court Nominees: A View from the United Kingdom

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