We are adjusted to the idea that Americans can elect some judges; it must be fun picking the most reactionary if your town is very conservative or going for the guy who likes exceeding the speed limit (a popular choice in France, for sure ); yet we read statements like this from time to time : " It [the Party] already controlled the Supreme Court with Republican nominees comprising seven of the nine judges who sit in the court " [That, you may guess, is from a liberal polemic; see, you can buy obscene literature in UK airports ! ] Now taking it that a judge may have been favoured, nominated and, indeed,finally chosen because their views on some issues are known to coincide with that of one party, how do you overcome the difficulty that politics and the judiciary are not meant to be bedfellows?
Almost needless to say our top judge, the head of the judiciary, is not only , at least nominally, the person who appoints all judges and magistrates, but he sits in the Cabinet and so is chosen by the Prime Minister, and is also the 'Speaker', as it were, of the Upper House of the legislature too. He may also fire any judge. This therefore, may seem an impertinently strange enquiry from a Briton
[Stranger yet, Mr Blair's enthusiasm for abolishing this office is met with strong resistance. His opponents fear that a supposedly independent Committee, largely of lay people, to appoint judges would soon consist only of members who themselves were chosen by the government of the day, on political grounds or as a reward for favours and not, as at present by career civil servants, unelected, who sound out the opinion of the Bar, of lawyers generally, of other judges and others who are fit to comment professionally, before drawing up a shortlist. The man himself sits as a judge, if at all, extremely rarely and never in cases touching upon the government. An existing judge is not appointed to the post; the man or woman is chosen from the ranks of senior lawyers. By the way, the last incumbent had been a senior in the law office where Mr Blair was a junior barrister ] ********************************************************* 07-21-04, 10:07 AM methos "Now taking it that a judge may have been favoured, nominated and, indeed,finally chosen because their views on some issues are known to coincide with that of one party, how do you overcome the difficulty that politics and the judiciary are not meant to be bedfellows?"
Regarding federal judges - (1) The Senate has to approve the decisions, which tend to make for more moderate selections than would otherwise occur. (2) The low turnover (these judges are appointed for life) prevents wild swings with each new administration.
07-21-04, 08:19 PM AMoore
quote:Originally posted by methos: "Now taking it that a judge may have been favoured, nominated and, indeed,finally chosen because their views on some issues are known to coincide with that of one party, how do you overcome the difficulty that politics and the judiciary are not meant to be bedfellows?"
Regarding federal judges - (1) The Senate has to approve the decisions, which tend to make for more moderate selections than would otherwise occur. (2) The low turnover (these judges are appointed for life) prevents wild swings with each new administration.
And, of course, the judges don't always retain the political views expected of them. Earl Warren was a conservative Governor in California, but is regarded as one of the most liberal of Supreme Court Justices. Perhaps California just lies so far to the left of the rest of the nation that our conservatives don't differ much from their liberals...
Alan Moore
07-21-04, 10:31 PM FredPuli Earl Warren had been a governor? He held a political appointment, in that he was elected to head a State ? It was strange enough that a parliament should choose judges. That's really what seems odd, not so much that a majority of one political party can, I assume,if they having control of Congress force through the appointment of their nominee. It's just that politics could ever be that close to the judiciary .
So you have a country where everybody knows and cares what church or religion every political candidate belongs to ( as you appreciate nobody here cares nor knows), and you have judges appointed by your legislators, in accordance with the wishes of whatever party has majority, and who even may have been voted in as Governors, as candidates of one of the two main political parties in their past ?
It'll never work, you mark my words Big Grin Big Grin
The key word there must be compromise; it's easy for us over here to forget that nobody there expects any one party to run the country. Apparently the last time that the President, the majority in both Houses and the majority of the Supreme Court were all of the same party was 1932.
That said, that anybody knows the politics of any judge, still more that he should have held a political office or shown any political interest is extraordinary to us. It would debar him from office as a matter of course here. The Lord Chancellor's Office would never shortlist anyone who had been active politically to any marked degree. It is embarrassing enough that Mrs Blair ( Cherie Booth Q.C. ) has sat sometimes as a temporary judge in minor cases. She has done that simply because it is expected of Queen's Counsel that they should sit a few weeks each year, if they can. It is seen partly as useful to the Courts; you can call in some expert Q,C, on Patent Law, say, as a relief judge for some lengthy case, to free up other Patent Law judges, for example; but it's mainly to give them experience of judicial work and to give observers some way of judging their judicial ability. I don't suppose trying a suspected shop thief is too politically sensitive but it seems likely that she will sit rather less in future.She is married to the Prime Minister but has never been politically active in any way that would debar her in general.
In France judges are career judges from the start. They start at the lowest level locally and work their way up to the highest; politics cannot enter into their progress (and it shows; they regularly annoy politicians Big Grin ). Here they are always practising lawyers, almost always barristers, for years first. Every practising barrister has a secret file kept on him ( very '1984' Smile ) with all manner of details on it gleaned from all over. It's maintained by the Lord Chancellor's Office in case he or she comes up for consideration. [All I can say is there must have been some very bad gaps in it over the years, considering one or two appointments Big Grin ]
07-21-04, 10:45 PM methos Judges are appointed by the President, not the legislature. The legislature has to approve them, but the vast majority of the President's appointees pass the approval process, whichever party controls the Senate.
07-21-04, 10:53 PM FredPuli I see . How does the President set about picking a judge? On what evidence, on what basis, is he expected to make a decision ?
07-22-04, 09:23 AM methos He picks the one the Senate will approve Wink
There is nothing in the Constitution to guide the selection, but generally appointments to the Supreme Court are judges who have the necessary experience and judgement (that's subjective, of course, and a judge with views closer to the President will naturally be seen by him as having better judgment), and haven't said or done anything controversial enough to prevent the Senate from approving them.
07-22-04, 02:46 PM FredPuli Thanks methos; that's very helpful. This still could not happen here though, simply because the public would be too distrustful, the cynical lot that they are. They would fear too much that the nominee was chosen because his doctrines were as close as possible to the nominator's whilst still being passed, so there was an unnatural and long lasting bias being progressively built in. ( Never happens there, as I see from your Wink ) "Questions would be asked in the House" as we say.
There is no reason of course why a good judge would not be fiercely independent of any government regardless of his politics; we are brought up to believe that no man, however powerful is above the courts and that no government can ride roughshod through them; but the suspicion would be too much. Anyway the majority of our judges are probably Tory voters , as in the old saying " I have absolutely no interest in politics; I vote for the Conservative party" (only the Left have great enthusiasm for politics and all it entails; all those committees and such; the Tories prefer cheese and wine parties and tombola at their gatherings, not speeches about trade unions or reports on agricultural policy )
Your system , at a guess, is modelled on how the draftsmen of the Constitution perceived this was done in England. George III appointed judges, at least in theory, as does his modern successor;but he would not have dared do so without sounding out his cabinet, and so parliament, first and getting approval so that there was no trouble. His traditional adviser, the Chancellor, was beholden to parliament, or at least the upper house, too (it's where the man sat, after all) .So it's no surprise that your 'monarch' is required to get the approval of his upper house before the appointment is confirmed. It's just that we have since rather distanced even the Lord Chancellor himself from the preparation of a list of candidates.
07-22-04, 07:03 PM methos There was probably influence by that system.
The Supreme Court is supposed to be the most distanced from politics while still drawing their ultimate authority from the people.
They are draw their authority from the people in that their appointment is by people directly answerable to and elected by the people.
They are distanced from politics by requiring both of the other branches to approve them, by not being directly elected, and (most directly) by being difficult to remove once installed.
Given your surprise at a governor serving on the Supreme Court, this one'll knock your socks off: Taft served as president from 1909-1912 and then on the Supreme Court from 1921-1930. Interestingly, the latter had always really been his goal (he started his career in the courts and moved into the executive branch at the urging of his wife).
07-25-04, 09:47 AM coldfuse Probably the most stark example of judicial independence is represented by Earl Warren. Warren, a Republican Congressman appointed to the Supreme Court by Dwight Eisenhower, led what is widely considered the most activist and liberal Supreme Court in U. S. History.
More recently, Sandra Day O'Conner, a conservative Reagan appointee, has been among the Court's most liberal justices over the past two decades.
07-25-04, 11:16 AM FredPuli You may not be surprised to learn, coldfuse, that the English Bar and judiciary regarded Earl Warren very highly; easily the most highly regarded American judge post WW2. He was regularly invited across to Bar functions here both to speak and as an honoured guest. You know, of course, what a load of lefty, socialist liberals the English, and above all their judges and barristers, are (so perhaps you should treat that approval with caution ) Wink
07-25-04, 01:56 PM Jelp01
quote:Originally posted by coldfuse:
More recently, Sandra Day O'Conner, a conservative Reagan appointee, has been among the Court's most liberal justices over the past two decades.
And the same could be said of Justice John Paul Stevens, appointed by Gerald Ford, another Republican. Stevens is considered THE most liberal of the justices on today's court by many.
This message has been edited. Last edited by: DorianGreyed,
); yet we read statements like this from time to time : " It [the Party] already controlled the Supreme Court with Republican nominees comprising seven of the nine judges who sit in the court " [That, you may guess, is from a liberal polemic; see, you can buy obscene literature in UK airports ! 
]
