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At least Americans choose top judges in public

One thought that I have about the whole furore about the Supreme Court and Kavanagh (no, I am not going over the whole bloody thing now) is that the US system is so much more public than in other countries that have something such as a Supreme Court, or bench of wise men/women who get to opine or even rule on constitutional matters. We have our Law Lords in the UK, and indeed the House of Lords (chosen by the government as there aren’t hereditary peers any more). As far as I know Law Lords are appointed from within the legal system and it is not entirely clear who specifically gets to pick them or approve the Law Lords. As for France, it has a Constitutional Council, members of whom are senior retired political folk and others who must be approved by the French parliament. What is interesting in the French case is that I don’t recall much media coverage of the hearings, even allowing for the often lousy state of British coverage of French public affairs (you would think a country a few miles across the English Channel and with whom we have traded, and occasionally defeated or liberated in wars might get a bit more attention). Germany has a federal constitutional court, and the gift of membership to this body is held in the hands of the Bundestag and by the Bundesrat (this body represents the state parliaments at the federal level).

All these systems have their merits, quite possibly, but what is certainly striking to my eyes is that it is only in the US that the decision as to who gets on the bench or not seems to be a matter of great media and public interest. In part, I suspect, this is because of how membership is in the gift, at least in the initial proposed stage, of the President. The US Supreme Court has issued major decisions down the decades, as momentous as Roe Vs Wade, Kelo (a big eminent domain case) and Dred Scott, to name just three. It seems also a more public system, whereas I get the impression that when a judge takes his or her seat in a European country, it registers as much public response as the daily announcement of the shipping forecast. And that, I think, speaks much to the more vigorous temper of American public life. It may not feel like this at the moment, but at least the raucous nature of American public life speaks to a certain health. In Europe, by contrast, so much of what happens resembles one of those dull zombie films of the 1970s or 80s.

34 comments to At least Americans choose top judges in public

  • Julie near Chicago

    Interesting piece from The American Constitution Society (founded as the Progressives’ answer to the conservative-libertarian Federalist Society) on the history of hearings on Supreme Court nominees:


    (The National Constitution Center is a project of the ACS. I can find a little bit of spin here and there — possibly with the help of an active imagination — in the way things are put, but as to the actual facts, I assume they’re generally correct.)


    As for the differences between decorum in the Senate and that in Parliament, as a Provincial whose only acquaintance with Parliament is via the weekly “Question Time,” you folks have always struck me as having a rather raucous bunch. At least when on-stage.

    Then again, physical fights have been known to break out between Senators.

    Just so y’all know, I’d have loved to give the browbeating, bullying Dem questioners a knuckle sandwich. Absolutely unconscionable behavior! Absolutely aside from the stupidity of the charges.

  • bobby b

    We in the USA have a robust Constitution – a constitution that sets out first principles, as opposed to rules. Rules govern very specific circumstances, while principles can be applied to most every circumstance. In my mind, this is as it should be, but there are difficulties associated with this as well as advantages.

    Take a relatively simple clause in our Constitution such as the so-called Equal Protection Clause. Found in our Fourteenth Amendment, it reads ” . . . nor shall any State . . . . deny to any person within its jurisdiction the equal protection of the laws.”

    This is a sweeping statement of principle that is one of our bedrocks. It is succinct, and seemingly simple to interpret: the State must treat us all equally, and show favoritism to none. But when we look to apply this principle to each and every act of the State, it becomes complex. It can be applied to the number of city buses that run in black neighborhoods versus white neighborhoods, the drawing of voting district maps, gay marriage, building codes and zoning, trucking regulations, voter ID requirements, drinking ages, movie ratings, cocaine versus crack use, barbershop licenses . . .

    It can be applied to virtually every state act, and people do attempt to so apply it, and so this one small partial sentence out of our constitution must be interpreted and applied constantly, and the one ultimate arbiter of each of these applications is our United States Supreme Court.

    Our Constitution has many such statements of principle, and each one holds comfort or trouble for some litigant who wishes to be treated differently by our government. And so our Supreme Court ultimately has more affect over more areas of each and every person’s life in our country than does any other officeholder, including our president.

    And so the balance of philosophies in that Court becomes paramount for anyone concerned about the direction taken by our government. The election of our president has more symbolic power – it’s the One Big Contest between opposing sides – but the balance of our Supreme Court determines much of the course of our country.

    So it’s a big deal.

  • Nico

    This is one of the many ways in which Europe has a democratic -and I would say republican– deficit. That may sound ironic in that the courts shouldn’t be democratic, no, but process is a big deal — process may be the only thing that can last and last. UK subjects have lost most of their rights in recent decades, but the Parliament is still sovereign and can still do as it likes. That’s the two process details in the UK that have survived for almost a millennium with only a few decades’ interruption during the civil war: elections no less frequently than, what, once every 5 years? and a parliament that can do what it pleases. It does seem like the Magna Carta has gone wholly out the window, along with freedom under the law of the land.

    The American Constitution is so much more robust than that process-wise, though it’s also much younger, and perhaps fewer hard rules leads to superior longevity, though obviously it’s too soon to tell.

    Right now it sure seems like the American Constitution is much better at safeguarding its own future and citizens’ rights. But it could be a mirage. In the end the health of a political system depends on its leaders and its people to not destroy it. Each generation must look out for it. Somehow I feel that the Constitution of the U.S. is such a beautiful document, that it can inspire at least 50% to keep it from being shredded every 20 years.

    I wonder how the British feel about their unwritten constitution. Does it inspire? What about continental Europeans? How do they feel about theirs? From here, the unwritten British constitution leaves me feeling all “meh”, and the European systems (about which I’m mostly ignorant) seem irrelevant: their people don’t seem to be inspired to protect those constitutions.

  • Nico

    @bobby b, I would say that though the Bill of Rights -and the few places where rights of the people show up in the original Constitution- are brilliant, it is the process rules that really make it the Constitution itself so hardy.

    The elections are run by the States, for example (somewhat regulated by Congress, yes, but run by the States), which makes it difficult for Congress or the President to really muck with them. The Federal government lacks police power. The hierarchy of courts makes the justice system pretty resistant to political interference. It’s not three branches of government, but more like four or five: the Congress, the Executive, the Judiciary, the States (with their own checks and balances, as they are required to have republican governments), and the juries and voters — the People. If only the Constitution was clearer that juries are allowed to be told about nullification, then we’d have a much more robust freedom under the law of the land.

    These things, and the various rules for passing laws, amending the Constitution, impeachments, and so on, are very, very well thought out. There have been relatively few cases where the rules had to be made up on the spot: during the civil war, the election of Rutherford B. Hayes, FDR’s (horrible, no good, very very bad) devaluation and prohibition of gold in 1933.

    There is only one serious bug in the process rules of the Constitution: that enlarging the Supreme Court is much too easy (which is why the Democrats are threatening to do it: they think they can). Since the Supreme Court can effectively modify the constitution extra-democratically, it makes sense that changing its size should require large majorities. FDR only failed to pack the Court because he pissed off the Senate — and the points out another thing, that the various institutions are each very jealous of their own power and prerogatives, and will put those ahead of party.

  • Nicholas (Unlicensed Joker) Gray

    Why not just have a new Supreme Court Judge elected every four years, for life? Let the voting mob decide!

  • Rich Rostrom

    Nico @October 9, 2018 at 4:33 am

    The Federal government lacks police power.

    Say what? The Federal government has over 40 different police agencies. Some are well known: the FBI, Secret Service, US Marshals. But there are dozens of obscure bodies with guns and arrest powers. The Federal Reserve Board has its own police force.

    The Feds don’t have jurisdiction over crimes within a state, but intervene anyway lots of the time.

  • Rich Rostrom

    One comment about all this.

    In 1945, President Truman nominated Sen. Harold Burton (R-OH) to the SCotUS. Burton’s appointment was confirmed the next day, by unanimous voice vote.

  • bobby b

    ” . . . it is the process rules that really make it the Constitution itself so hardy.”

    Completely agree. I just meant that the broad-stroke statements of rights sprinkled throughout amount to a grant of incredible federal power to the USSC, because their scope makes them ubiquitous factors in our relationships with our governments and peoples.

    “Why not just have a new Supreme Court Judge elected every four years, for life? Let the voting mob decide!”

    “The decision was announced yesterday by Chief Justice Taylor Swift . . . ”

    She may be the Justice we deserve, but still . . .

  • Under the old British constitution, parliament was also a court. On being told at his trial in 1649 that he was being tried by the Commons, King Charles expressed his demurrer thus:

    The House of Commons was never a court of judicature. I would know how it became so.

    because parliament (i.e. the Commons and the Lords) was a court, but not the Commons alone. (All the few remaining Lords had fled London, to avoid being dragooned by Cromwell’s troopers, who had purged the Commons to the point that the quorum of 40 could only be met by Charles’ judges calling a recess and rushing to the House at every vote, but had missed the Lords.)

    More recently, Tony Blair invented the UK’s supreme court, benefiting from the lack of attention that (as the OP notes) we give to such potentially important issues. The court is a creature of the political class and will protect them far more often than it protects us. I think the more visible older system was better on the whole.

    (Of course, the new court was expected to be subordinate to the eurocratic courts.)

  • bob sykes

    The US Constitution is silent on how the constitutionality of laws is determined. The Founders were still under the influence of Britain’s legal system in which such issues are moot.

    Back in the Jacksonian Era, Chief Justice Marshall filled the void by asserting the Supreme Court had the power. This was a clear usurpation, and Jackson would have been justified in arresting Marshall and trying him for something or other. But, the usurpation stuck. Probably because there was in fact a need for it.

    Until very recently (20 years?), the US was the only Common Law country that allowed its courts to judge the validity of laws of parliament. Now most do.

    On the downside, the Supreme Court can effectively amendment the Constitution by its interpretations. The recent “amendments” are abortion rights, sodomy legalization, school prayer and affirmative action. This amendment process has made the Court an actor in the country’s politics, which makes its appointments so important.

  • Sam Duncan

    “We have our Law Lords in the UK, and indeed the House of Lords (chosen by the government as there aren’t hereditary peers any more).”

    No we don’t. As Niall says, we have the Supreme Court of the United Kingdom. Chosen by God knows who.

    My father recently received an invitation to a lecture by Lord Reed, the Deputy President of the Supreme Court. Neither he nor I knew who the guy was until I looked it up. I’ll bet nobody here would have either. Even the House of Lords was more public than this damn thing. At least people knew who the Lord Chancellor was.

    (The lecture is on “The Judge as Legislator”, and it sounds – human rights lawyer, one of the UK delegation to the ECHR – as if he rather approves of the idea. I intend to quiz my dad thoroughly afterwards, although being in his mid-80s I expect he’s more interested in the dinner that goes with it…)

  • I’d make fun of the British for calling the members of their top court “Law Lords”, except “Supreme Court Justice” is even more eXXXtreeme.

  • Snorri Godhi

    I had not thought about this before reading this post; but, having read it and thought about it, i submit that at least part of the difference is that changing the US Constitution **as written** seems to be substantially more difficult than changing any other Constitution.
    The opposite extreme, i suppose, is the UK, where a simple majority in the Commons can change constitutional law … and what counts as “constitutional law” is itself debatable, as i understand.
    In Italy, i seem to remember that a simple majority in a referendum with a quorum can change the Constitution; although i suppose that Parliament, and maybe the Constitutional Court, must first approve the referendum. Sorry i can’t be bothered to check wikipedia.
    I also seem to remember that an Italian friend told me that judges on the Constitutional Court are chosen by a process internal to the judiciary branch.

    But there is a loophole in the US Constitution: a simple majority in the US Supreme Court can change the Constitution as it is understood, though not as it is written. That being the easiest way to change the Constitution, it is understandable that people try to take it and/or to block it to their opponents.

    I must say that the Kavanaugh saga was quite gripping. One important takeaway is that you can fight like a pitbull while remaining more dignified than Trump.

  • CharlieL

    “I expect he’s more interested in the dinner that goes with it…)”

    He definitely has his priorities right, As I am learning as I age.
    As far as the constitution goes, it’s put together like a watch. Maybe not a Patek-Phillipe, but serviceable, with some self-cleaning features for when someone or some thing throws sand in the gears. That plus most US law having it’s roots in English common law makes me quite happy. I never could quite wrap my brain around that Napoleonic Code thing.

  • Nico

    @Rich Rostrom, actually, the U.S. federal government lacks police power over most people, most of the time, because most people, most of the time, fall into local jurisdictions. Yes, there are areas of law and land where the federal government has jurisdiction first / ahead of any local jurisdiction, but because it’s so limited, most people never see a federal officer handing out speeding tickets, or investigating burglaries, and so on.

  • Mr Ed

    The ‘Law Lords’ were a creation of the 1870s IIRC, given a sort of Life Peerage and a seat on the Judicial Committee of the House of Lords, and were called ‘Lords of Appeal in Ordinary’ sometimes a ‘normal’ peer would come along and sit, and technically was allowed to do so, but his opinions were (unconstitutionally) ignored. The Lord Chancellor could also sit as a Law Lord, the last one to do so was IIRC, Lord Irving of Lairg, Tony Blair’s old pupil master and a formidable legal mind, when not choosing his wallpaper at taxpayers’ expense. Often in history, the Lord Chancellor was made a Viscount because he was so important, but that went out of fashion.

    The Supreme Court changed all that, the ‘Law Lords’ were removed into the ‘Supreme Court’, the Lefties’ wet dream of an activist court, which also rolled-in some of the functions of the Judicial Committee of the Privy Council for UK cases, and it also has a constitutional role in looking at devolution issues, as well as a controversial novel right to intervene in Scots criminal law (which the House of Lords never could) on the usual fancy Human Rights ground.

    Of the current Supreme Court, only a few hold-overs from the ‘Law Lords’ are peers, the new ones are not peers and not in the House of Lords, but they are styled ‘Lord’ or ‘Lady’ by Royal Warrant, (unlike Barons who are ‘The Lord X’, a SC justice is ‘Lord X’,) this is so that they can book restaurants with ease I presume (and to keep up with Scottish Judges who are ‘Lord Y’ etc. as members of the Court of Session. They are also appointed to the Privy Council so are ‘Rt. Hon.’.

    They are chosen by the Judicial Appointments Commission, which is stuffed with… let me guess.

    And they are paid far more that SCOTUS justices, shocking, those guys have 51 jurisdictions to grapple with, and they have to hang around DC. An associate Justice gets US $251,800, c. £192,367 p.a.

    A UK Supreme Court Judge gets over £215,256 p.a.

    Why not chose judges for your case on a case-by-case basis and avoid precedent, just allow 1 appeal, and let Parliament set the law if it is going wrong?

  • Nico

    @Snorri Godhi, the irony is that this was Trump’s most dignified fight so far, I think. He stayed above the fray for quite some time, and only at the very end did he get dirty (by mocking Ford). The ones who fought like bulls, like Lindsey Graham or Kavanaugh, did not look as dignified as Trump did up to that point.

  • Rich Rostrom

    bob sykes @ October 9, 2018 at 1:51 pm:

    Back in the Jacksonian Era, Chief Justice Marshall filled the void by asserting the Supreme Court had the power.

    Marshall asserted the power of judicial review in Marbury v. Madison (1803), long before the Jacksonian Era. Then-President Jefferson didn’t complain, because Marshall found for Madison (Jefferson’s Sec of State) on the grounds that the law Marbury had sued under was unconstitutional.

  • Sean

    Is the difference between the US (Anglosphere) and EU (Continental) due to their common law vs. civil law heritage? The power of judges is way less in the latter – no?

  • Jacob

    How many judges are on the UK Supreme court?
    The importance of the USSC nominations is related to the very small number of Justices, so each one is important.
    In other countries the Constitutional tribunal is larger than in the US, and, also, I guess, they have mandatory retirement age or replacement procedure and are not elected for life.

  • Mr Ed


    The UK Supreme Court has 12 judges, including a President and Deputy, but it normally sits in odd numbers of 5, or more rarely 7 or 9. The President picks the Court so can have an influence on picking the team. It does not sit en banc like the USSC.

    One good thing is that they have a retirement age of 70 or for the longer-serving judges, 75.

  • Nicholas (Unlicensed Joker) Gray

    Bobby b. at least Taylor Swift would look good in robes, and her decisions would be made swiftly!

  • Fraser Orr

    @bobby b, your description is how it is supposed to work (though it is far from obvious to me what city buses have to do with “protection of the law” which seems both by wording and by its roots to pertain to criminal law, not the provision of services by local governments.) Nonetheless, the reason the supreme court judicial confirmations are so vexed is quite simply that it is about two specific things, abortion and, to a lesser extent, gun rights. Everything else is basically peripheral (though occasionally important.)

    Which in a sense is ironic since the left wants to severely restrict gun rights despite the fact that the constitution explicitly grants citizens a right to keep and bear arms, and they want to completely unrestrict abortion despite the fact that the constitution says nothing at all about that subject (the ridiculous Griswald notwithstanding.)

    These nominations were much less contentious before Roe vs Wade. It is surely symbolic of the fact that Roe is such a bad decision that the left wants to do everything it can to prevent someone looking under that rock. And I say that as someone who favors a woman’s right to abortion.

    The left’s treatment of Kavanuagh is really a metaphor for their treatment of the court and Roe itself. It is about the ends and any means that gets you to the end, even burn the whole thing down, is OK as long at the ends are, in their view, righteous.

  • Fraser Orr (October 10, 2018 at 5:01 am), while I agree that gun rights and abortion are the things they will talk loudly about, be aware that the first amendment can never be redefined to exclude ‘hate speech’ while the court is infested with those ‘strict constructionists’ that the Grauniad hates so much. The followers may not all of them be focussed on that aspect, but I suspect the leaders are aware of it.

    I conjecture that bobby b (October 9, 2018 at 2:15 am) was giving more of a descriptive rather than prescriptive description of how the 14th amendment is used and abused. Like you – IIUC – I observe it reads

    nor shall any State . . . . deny to any person within its jurisdiction the equal protection of the laws

    and not

    nor shall any State . . . . deny to any person within its jurisdiction laws that guarantee equal protection

    but both the natural issues and its historical context permit some range of genuine discussion even before the abusers get in on the act.

  • I WAS WRONG !!!

    That is, I was not entirely right. I am of course almost always entirely right about almost everything, but when I said above that

    The [new-fangled UK supreme] court is a creature of the political class and will protect them far more often than it protects us.

    I did not foresee that the right of any passing gays to make me bake them a cake saying what a great idea gay marriage was would not only not be upheld by that court but be not-upheld unanimously.

    Since I used the weasel-words ‘far more often’, I may yet be proved right statistically – but meanwhile, who’d a thunk it!

  • bobby b

    Fraser Orr:

    ” . . . it is far from obvious to me what city buses have to do with “protection of the law” which seems both by wording and by its roots to pertain to criminal law, not the provision of services by local governments.”

    If you’re stating how you read the words logically and grammatically, I can’t argue with you. But as a legal matter, the clause has been interpreted by the USSC at various times to mean that government cannot treat us differently based on “wrong” classifications – sort of a constitutional analog to civil rights statutory laws. Thus, a city cannot spend less on buses for blacks than on buses for whites. Of course, there’s another thread of legal argument that holds that even considering race in questioning the impact of state action violates the equal protection guarantees, so it’s all muddled, and it’s all very much affected by the composition of the Court.

    I agree that abortion and guns have driven much of the Court-appointment rancor, but in my mind, the more important factor is that the left views the Court as its best shot at negating the Constitution so that their emotion-driven form of governing can be followed without restraint. As you point out, they like some of it, they dislike other parts, and they want “law” to mean “what they want today”.

    This is why I essentially worship Originalists. I believe that most of what remains good in this country has been made possible because we have a written constitution that is very hard to modify, that what the Drafters wrote down was very very well devised, and that allowing people to alter the Constitution to fit their whims will destroy a great system.

  • Julie near Chicago


    1. Cheer up. I was wrong myself once — I think it was back in 1963.

    2. Less of the “weasel-words,” please. If one knows that something is the case more often than…[not, or “one would expect,” or whatever]…than that is precisely what one should say. If one thinks that one ought to give a qualified statement of some sort, the alternative is to give a number pulled out of one’s ear, or to say nothing, contra the premise. [Snootily put, in a spirit of self-mockery — though the fact remains.]

    3. Based on this, perhaps I will see if Mr. Hacker can get me posted to Northern Ireland. What a pleasant foil to the Masterpiece Cake Shop angst-ridden kerfuffle here.

    4. Because, the argument that Ashers refused to sell a cake that would carry a message with which they disagree is clear as crystal. The statement that the “discrimination” is against the message and not the customer is a perfect framing of the issue.

    Our own Mr. Phillips also won his case before our Supremes, but on very narrow grounds. Here, too, Mr. Phillips’ attorneys argued that he was not refusing to sell a wedding cake to homosexual customers, but only to making and selling one carrying a message celebrating something which he considered to flout his religious beliefs. The same issue at bottom, but less clearly put, and with many statements about whether the law requires that the bakery, being open to the custom of the public, should be considered as if it were a common carrier. The strenuous counterargument to that, was that a common carrier’s legal status as such is based on the idea that it is a monopoly. This thoroughly muddies the waters.


    All by way of saying, Good for the Ashers! Good for the Court! and Good for Northern Ireland!

    And Thanks to Niall for presenting something to lift the tone of my day. :>)))

  • Julie near Chicago (October 10, 2018 at 10:04 pm), thanks for your ‘cheer up’. Of course, as you well knew, I was actually feeling quite cheery when I wrote my post. 🙂

    Logically, you are 100% right about my use of the phrase ‘weasel words’, but I was also aware of my emotions when I wrote the original text that I later described as weasel words. There is always a temptation to assume that all left-wingers, all people who serve in an institution created by Tony Blair, every single person who works for the European court of human wrongs, or the UN, or … – in short, everyone connected in any way with anything I disapprove – are vile degenerates whom not the wildest rhetoric could unfairly denigrate. Specifically, there was a temptation to write that the Tony-created UK supreme court “will always” oppress us, “can be relied on” to betray us, or some such phrase. It was my better self – my “get it right, don’t exaggerate” self – that made me write it would only ‘often’ be a weak reed in defence of our liberty.

    On the rare occasions when the accuracy of my better self is proved prudent as well as right within a day, my better self likes to humiliate my prejudiced self into noticing and so remembering: hence ‘weasel words’ – not logically correct (as you observed) but not a wholly inaccurate caricature of what my prejudiced feelings felt about that way of putting it when I wrote it.

  • Dyspeptic Curmudgeon

    “We have our Law Lords in the UK, and indeed the House of Lords (chosen by the government as there aren’t hereditary peers any more).

    There are still hereditary peers in the Lords, some 92 out of 800 odd. They all inherit their peerage, but are *elected* by the mass of hereditary peers (which must number in the multiple hundreds if not a thousand and more: I have no idea). The rest are appointed as lords by the government of the day and are generally not heritable estates.

    It has turned out that although the Lords cannot veto legislation (as it could prior to 1911(??)) it now performs the line by line review of legislation which the Commons does *not* do, and proposes amendments to the legislation. The amendments are voted upon by the Lords, which is not as ‘whipped’ as the Commons. And a defeat is not a non-confidence motion. Many of the amendments passed by the Lords are accepted by the Commons, apparently.
    (This makes sense, as legislation is more often written by the simple serpents and no Commons backbencher has any say in the contents: viz, the Chequers Brexit plan (may it rest in peace).

  • Dyspeptic Curmudgeon

    According to Maitland, the last time the House of Commons acted as a court was the attainder trial of one Lord Atterbury in 1688 or so. (Although, iirc, Maitland was not quite sure that this was actually the last instance).
    (Maitland’s A Constitutional History of England is floating out there as a pdf. It is a very good exposition of the history of the flow of *power* in and among the church, the monarchy, the lords and the commons.)

  • Julie near Chicago


    All in a joshing spirit of camaraderie, as I’m pretty sure you know. 😀

    “Weasel words”: Just because you were the addressee does not mean you were the target. The target is all those dumkopfs who employ the catch-phrase (and as a rule I hate catch-phrases) as a snide put-down.

    However, thanks for describing your state of mind at the time. An enjoyable small light on the Kilmartin inner workings. :>)))

  • Paul Marks

    IF a Constitution is too complicated to be understood by an ordinary JURY then it is too complicated (period).

    There is no reason why a jury can not decide if a Act of Congress is against the Constitution of the United States – if they hear the arguments of both sides of the case. But if full time judges must decide such cases – then these judges MUST be selected in an openly politically way. Giving the choice of judges to some “professional body” (as the Economist magazine and the rest of the international “liberal” elite demand) then the left would have a stranglehold over everything.

  • jsallison

    Julie near Chicago –

    Thought I’d been mistaken once, turned out I was in error.

  • Julie near Chicago


    Well played!