4 ms·

How would you suggest selecting jurists in a way that doesn't introduce partisan incentives?

tialaramex 8mo ago
Given that the current system maximises partisan bias, it's actually hard to do worse. Ideally you'd want to reform this hierarchically, but supposing we can only fix that final court, you want say a committee consisting of roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court, a couple of retired judges from this court (if it had age limits, but today it does not) or the courts below it who've done this job, and five otherwise unconnected citizens (no specific business before any court now or expected) chosen at random the way most countries pick their juries. That committee is to deliver a list of several people best qualified to fill any vacancies on the court which arise before the next committee does the same, if such a vacancy arises you just go down the list.
- 0xDEAFBEAD 8mo ago
  >roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court How are these members of the committee chosen then? Seems like you're just moving the problem around, if choice of committee member is also subject to partisan incentives.
roryirvine 8mo ago
It would be worth looking at how other countries with comparable legal systems do it. Eg., members of the Supreme Court of the UK are appointed by the King on the advice of the Prime Minister. The Prime Minister is required by law to recommend the person nominated by an independent commission. The selection must be made on merit, in accordance with the qualification criteria of section 25 of the Act, of someone not a member of the commission, ensuring that the judges will have between them knowledge and experience of all three of the UK's distinct legal systems, having regard to any guidance given by the Lord Chancellor, and of one person only. https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_of_the_United_Kingdom#Appointment https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_o... This seems to work fairly well and, although specific decisions are argued over as part of normal political discourse, it is generally seen as being non-partisan. Ireland (which also has a common law legal system) has a similar setup, with the President appointing supreme court justices based on the recommendation of the government who, in turn, are advised by an independent panel. That advice is technically not legally binding, so this is in theory a less-strictly non-partisan system - but in practice it works out about the same.
- 0xDEAFBEAD 8mo ago
  If creation of independent nonpartisan panels is so easy, why not just have such a panel govern the entire country? Any country which struggles to appoint justices in a nonpartisan way will also struggle to assemble a panel in a nonpartisan way, I think.
  - wasimanitoba 8mo ago
    I think the difference is that you can specify independently verifiable criteria for the selection process and require participants to decide based on those criteria alone without forcing them to become political actors who must directly bear the consequences of political decisions. Not totally immune to issues of partisanship, but at least somewhat insulated.
    - 0xDEAFBEAD 8mo ago
      OK, so what criteria would you specify? BTW, the original intent of the Electoral College in the United States was pretty similar to this. Electors were supposed to be independent actors exercising their independent judgement in selection of the president. It wasn't sustainable for long.
      - bubblewand 8mo ago
        This understates the failure: it was about as close to “immediate” as it could be. The whole structure was pointless just about as soon as the new state began to operate. The electoral college is basically an appendix, except it was never a useful organ. It malfunctioned completely, right out of the gate.
        0xDEAFBEAD 8mo ago
        Sure, so that suggests that these so-called "independent nonpartisan panels" are likely to fail immediately as well. It illustrates the principle that good intentions are no match for incentives.

Given that the current system maximises partisan bias, it's actually hard to do worse. Ideally you'd want to reform this hierarchically, but supposing we can only fix that final court, you want say a committee consisting of roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court, a couple of retired judges from this court (if it had age limits, but today it does not) or the courts below it who've done this job, and five otherwise unconnected citizens (no specific business before any court now or expected) chosen at random the way most countries pick their juries. That committee is to deliver a list of several people best qualified to fill any vacancies on the court which arise before the next committee does the same, if such a vacancy arises you just go down the list.

0xDEAFBEAD 8mo ago
>roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court How are these members of the committee chosen then? Seems like you're just moving the problem around, if choice of committee member is also subject to partisan incentives.

roryirvine 8mo ago

It would be worth looking at how other countries with comparable legal systems do it. Eg., members of the Supreme Court of the UK are appointed by the King on the advice of the Prime Minister. The Prime Minister is required by law to recommend the person nominated by an independent commission. The selection must be made on merit, in accordance with the qualification criteria of section 25 of the Act, of someone not a member of the commission, ensuring that the judges will have between them knowledge and experience of all three of the UK's distinct legal systems, having regard to any guidance given by the Lord Chancellor, and of one person only. https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_of_the_United_Kingdom#Appointment https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_o... This seems to work fairly well and, although specific decisions are argued over as part of normal political discourse, it is generally seen as being non-partisan. Ireland (which also has a common law legal system) has a similar setup, with the President appointing supreme court justices based on the recommendation of the government who, in turn, are advised by an independent panel. That advice is technically not legally binding, so this is in theory a less-strictly non-partisan system - but in practice it works out about the same.

0xDEAFBEAD 8mo ago
If creation of independent nonpartisan panels is so easy, why not just have such a panel govern the entire country? Any country which struggles to appoint justices in a nonpartisan way will also struggle to assemble a panel in a nonpartisan way, I think.
- wasimanitoba 8mo ago
  I think the difference is that you can specify independently verifiable criteria for the selection process and require participants to decide based on those criteria alone without forcing them to become political actors who must directly bear the consequences of political decisions. Not totally immune to issues of partisanship, but at least somewhat insulated.
  - 0xDEAFBEAD 8mo ago
    OK, so what criteria would you specify? BTW, the original intent of the Electoral College in the United States was pretty similar to this. Electors were supposed to be independent actors exercising their independent judgement in selection of the president. It wasn't sustainable for long.
    - bubblewand 8mo ago
      This understates the failure: it was about as close to “immediate” as it could be. The whole structure was pointless just about as soon as the new state began to operate. The electoral college is basically an appendix, except it was never a useful organ. It malfunctioned completely, right out of the gate.
      - 0xDEAFBEAD 8mo ago
        Sure, so that suggests that these so-called "independent nonpartisan panels" are likely to fail immediately as well. It illustrates the principle that good intentions are no match for incentives.