An International View of the Supreme Court Confirmation Process

 This guest post is by Patricia Villa Berger, a J.S.D. candidate at Chicago-Kent College of Law.

The debate over Brett Kavanaugh’s confirmation to the Supreme Court captured the nation’s attention. Political analysts and legal experts studied this story from the perspective of party politics, the upcoming midterm elections, gender relations, judicial virtues and temperament, standards of proof in a confirmation hearing proceeding versus a criminal trial, and the role of the FBI in the confirmation process. They have also evaluated the potential impact of Kavanaugh’s appointment on the development of case law in controversial areas such as reproductive rights, campaign financing, executive powers and immunities, voting rights, and religious freedom.

Often lost in this high-stakes drama are the distinctive rules that govern the confirmation of Supreme Court justices in the United States. These rules can make the process more efficient and transparent, or they can incentivize conflict and politicization—and thereby endanger the legitimacy of the Supreme Court as an impartial arbiter. The U.S. could learn from other countries that take much different approaches to appointing their Supreme Court justices.

Consider what might seem an unlikely model: Mexico. Though Mexico has a long history of authoritarianism, its recent efforts to consolidate democractic governance have forced political actors to tailor its appointment rules in a way that balances power between the Court and the legislative and executive branches.

Under the Mexican Constitution, the President nominates three candidates, each of whom are reviewed and voted upon by the Senate. This process allows the Senate to compare candidates, weigh their credentials, evaluate their temperaments, and assess their views on the most pressing legal issues through public hearings. Any nominee who receives a two-thirds majority of the present members of the Senate is appointed to the Supreme Court.

In adddition, the Mexican Constitution allows for the possibility that the Senate will not approve any of the three nominated candidates. If the Senate does not vote within 30 days of submitting the list of candidates to the Senate, the President has the power to directly appoint one of the candidates in the list submitted. If the Senate rejects the list of candidates (and this has happened), the President must submit a new list. If the Senate rejects it again, then the President has the power to directly appoint one of the candidates from the second list submitted.

Another aspect worth mentioning, though not strictly pertaining to the confirmation process, is the length of appointments for justices. The Mexican Constitution limits the service of justices to 15 years. This gives the members of the Supreme Court considerable independence while also allowing for a regular pattern of renewal in its 11 members.

Mexico offers just one example among many around the world of alternative confirmation processes that would avoid the kind of hyper-partisan showdown we saw with the Kavanaugh nomination.

In the United Kingdom, for example, anyone who meets the job requirements can apply to serve on the Supreme Court. A selection commission of representatives from the different legal jurisdictions of the UK evaluates candidates and sends its nomination to the Lord Chancellor. If approved, the nomination goes to the Prime Minister, who then forwards the name to the Queen.

In Chile, the President picks a nominee from a list of five candidates submitted by the Supreme Court itself. Justices require approval by two-thirds of the Senate. In both the UK and in Chile, justices serve during good behavior until a mandatory retirement age of 75 years.

Note that none of these countries allow for direct nominations by the Executive branch, and none have lifetime appointments for judges. Those that include legislative review mandate a super-majority vote for approval to the Court.

No set of rules can assure a civil, substantive appointments process. Politicians and lawyers always find way to bend rules to their advantage. But at least rules of this kind provide a better ground to shield a Supreme Court from a saga such as the one we recently witnessed.

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