Democracy, voting & the constitution
How Should Judges Be Appointed?
LNAT Section B · Model essay
The essay prompt
By what method should judges be chosen, and what principles should govern that process? Examine the competing models and reach a reasoned view.
The stance
Judges should be appointed by an independent, merit-based commission with lay participation, transparent criteria and a duty to widen the pool, not by elected politicians and not by the judiciary alone; this design reconciles independence with legitimacy better than any pure model.
The case for
Independence is the structural reason to take appointment out of political hands.
A court that owes its seat to ministers or party patronage cannot credibly rule against them. This is why the UK shifted from Lord Chancellor patronage to an independent Judicial Appointments Commission under the Constitutional Reform Act 2005, and why Article 6 of the ECHR treats the appointment process itself as part of the guarantee of an independent tribunal established by law. A bench beholden to the executive ceases to be a court; it becomes a cabinet in robes.
The case against
Unelected judges wielding great power should answer to the democratic will.
Senior judges strike down legislation and shape contested public policy. On this view, the people, through their elected representatives, should choose those who hold such power, as in the United States where the President nominates and the Senate confirms, or in states that elect their judges directly. An appointed commission, the objection runs, leaves a powerful office without a democratic mandate.
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