How not to appoint judges

February 12, 2017

A justice system should be nothing less than open

How not to appoint judges

Any one not living under a rock now knows that Donald Trump, President of the United States, has nominated Neil Gorsuch to be the next Associate Justice of Supreme Court of the United States. The process will, as it often is, be contentious. It will involve the nominated judge meeting senators to gather votes as well as appearing before the senate to answer questions. This is scandalous to some while others view this as a manifestation of a transparent and open process.

Supreme Court in the US is an enormously influential, and of course powerful, court. Almost every major politically divisive issue in the US is eventually litigated before America’s apex court. The nature of the appointment process for all federal judges -- who have lifetime tenure unless removed for misconduct -- involves nomination from the President and confirmation by the US Senate. A President nominates those to the Supreme Court who, in his estimation, will advance the President’s view of the US Constitution. Critics allege that this process is too political. And supporters say; of course it is but why pretend that interpreting the Constitution is not a political process?

There is no guarantee that a President’s appointee will tow the line of the party of the President that appointed him. There are multiple examples of this. Some of the most activist justices of the court were appointed by Presidents who wanted conservative justices.

The current appointment battle is particularly significant because it involves filling a seat left vacant by the death of the late Justice Antonin Scalia -- a man celebrated by judicial conservatives the world over, not just in the United States. Trump wants a conservative appointee to ensure that the political balance of the top court does not change for the worse. Bear in mind that America’s top court has 9 justices -- they sit en banc, i.e. together and not in separate benches. With Justice Kennedy being the most important swing vote, the court (till Scalia lived) was divided between four conservatives and four liberals. If another justice retires or dies during Trump’s term, he will get a decidedly conservative court -- an issue that will give liberals in the US sleepless nights.

Judicial appointments are a difficult subject; there are difficult balances to strike -- between transparency and respect for the judiciary, accountability before people or their representatives as well as judicial independence.

The appointment process in the US is markedly different from most places in the world. Judicial appointments are a difficult subject; there are difficult balances to strike -- between transparency and respect for the judiciary, accountability before people or their representatives as well as judicial independence. To its credit, Pakistan through the 18th Amendment markedly reformed its judicial appointment process for the High Courts, Federal Shariat Court and Supreme Court. The process now involves a judicial commission as well as a parliamentary committee for further vetting -- both expressly find mention in the Constitution. The role of the parliamentary committee however has not turned out to be as vigorous as some initially envisaged or hoped for. There was understandable unease in certain circles that judges will be expected to appear before politicians and answer questions -- and I think while the unease was understandable because of the novelty of the process, it was and is not justifiable. The law as it stands today is that if parliamentary committee rejects the proposals of the judicial commission, those reasons are justiciable, i.e. can be examined by a court in judicial review. Till date the procedure adopted by and proceedings before parliamentary committee have seen little sunlight. There are no open hearings which public can attend -- and the proceedings are not televised.

But would it be such a bad idea to hold televised hearings before confirming future justices of Pakistan’s superior courts? My take is that while the process may initially cause some unease, and may also see some unfair questions, it will eventually in the long run add to the credibility of democracy and the judiciary in this country. There is widespread disenchantment with the justice system in Pakistan -- its actors are seen as fundamentally removed or best avoided. Lawyers are not thought of as the most law-abiding collective -- this is sad but true. A significant number of people do not know that courts are open to the public. The entire justice system remains shrouded in mystery or mired by unnecessary awe or enigma. This is of course driven in part by our colonial heritage but as a polity we should do more to make the system more accessible and transparent.

Bear in mind that Pakistan’s judicial appointments’ process is still markedly better than India’s where numerous attempts to reform the process -- or to make it more broad-based -- have failed or been struck down by the Supreme Court of India. Pakistan’s judicial commission and parliamentary committee represent some progress -- but we must not stop here. Lawyers and judges should continue to consider the merits, and even de-merits, of opening up the process. What we do on a daily basis is not just meant to be a self-congratulatory and closed affair -- far too often it appears that it is though.

Being a lawyer or a judge is a rare privilege because we become part of an enterprise much larger than we as individuals can or ever will be. The system of precedent ensures that we stand on the shoulders of giants to learn from them while helping the law evolve over time. Actors in a legal system help give a voice to the voiceless -- apart from the intellectual thrill of pitting brains against each other and resolving deeply contentious issues by persuasive arguments.

Those who lack a voice or do not understand the complexities of the system are still intelligent enough to know what works for them -- politically. We recognise this every time we respect one person, one vote. Opening up the judicial appointment process and letting people’s representative have a greater say will strengthen the voiceless and actors within the justice system. If not today, it will happen eventually -- so why get in the way? This should be done not because America or any other country adopts a particular method -- but only because democracy is strengthened with more participation and multiple voices. The arc of history bends towards openness. And a justice system should be nothing less than open.

How not to appoint judges