How Should Judges Be Appointed?

The question is usually argued as a contest between democracy and expertise: should the people choose their judges, or should the judiciary choose its own? Both framings miss the real problem. Judges must sometimes rule against the very government that might appoint them, yet their authority depends on public trust they cannot command by force. The task, then, is to design a method that secures independence from power while retaining legitimacy with the public. I will argue that this is best achieved by an independent, merit-based commission with lay participation, transparent criteria and a duty to widen the pool, and not by political election or by the judiciary appointing itself.

Independence is the first and strongest reason to keep appointment away from politicians. A simple principle of fairness holds that the appointer should not be the litigant: a judge who owes their seat to ministers cannot credibly rule against them. This is precisely why the United Kingdom abandoned Lord Chancellor patronage and created an independent Judicial Appointments Commission under the Constitutional Reform Act 2005, building on the security of tenure first granted by the Act of Settlement 1701. The same logic operates in human-rights law: Article 6 of the European Convention guarantees an independent tribunal established by law, and the Strasbourg court has treated the manner of a judge's appointment as part of that guarantee. A bench beholden to the executive ceases to be a court; it becomes a cabinet in robes.

The natural objection is democratic. Senior judges wield enormous power, striking down legislation and resolving contested questions of policy, so surely the people, through elected representatives, should choose them. The United States embodies this answer: the President nominates and the Senate confirms, and most states elect their judges outright. Yet the American experience is a warning rather than a model. In the thirty-eight states that elect their high-court judges, contests have become big-money races funded by interest groups with cases before those very courts, and federal confirmation has hardened into partisan trench warfare. Legitimacy bought through the ballot is paid for in the currency of independence. Election does not democratise the bench; it politicises it.

If elections are the wrong route to legitimacy, lay participation is the right one. Judges control neither sword nor purse; their power rests on trust, and a judiciary chosen only by judges risks becoming a self-perpetuating guild, a monastery of law sealed off from the society it governs. The UK commission answers this without resorting to the ballot: of its fifteen members, the chair and five others are lay people, signalling that the bench serves the public rather than itself, while judges and lawyers safeguard professional standards. The public sees itself in the process without judges having to campaign for office.

Legitimacy also has a sociological dimension, and here diversity becomes a question of design rather than decoration. Section 64 of the Constitutional Reform Act 2005 requires the Commission to encourage diversity in the range of people available for selection, even as section 63 keeps appointment solely on merit, and the equal-merit provision introduced in 2013 allows diversity to break a genuine tie. This is not a quota but a duty to look further. The objection that diversity displaces merit assumes that the old bench was meritocratic, yet a judiciary that for centuries excluded women and minorities was never selecting the best; it was selecting from a privileged pool and calling the result merit. The figures still bite: in 2024 women were only 38 per cent of court judges and ethnic-minority judges around 10 per cent, with the senior bench overwhelmingly white and male. The Lammy Review of 2017 showed how that distance corrodes the trust of the very communities most affected by the courts. Justice must not only be impartial; it must be seen through more than one set of eyes.

Finally, transparency knits independence and accountability together. Published criteria and open competition let the public verify that appointments are won, not granted as favours, and accountability of this kind is the oxygen of independence rather than its enemy. The comparative record bears this out: Canada's 2016 independent advisory board and South Africa's constitutional command that the bench reflect the nation's racial and gender composition both pursue, in different idioms, the same reconciliation the UK seeks. Pure political appointment corrodes independence; pure self-appointment erodes legitimacy. A commission balancing merit, lay voice, openness and a wider pool is not a muddled compromise but constitutional craftsmanship, and it is how judges should be appointed.