Jack Knight: Judicial Selection

In light of the U.S. Senate’s deliberations on Brett Kavanaugh's nomination to the Supreme Court, Professor Jack Knight of Duke University and World Justice Project executive director Betsy Andersen discuss the United States’ process of judicial selection, the role it plays in ensuring accountability and independence, and compare the U.S. approach with other methods around the world.

The U.S. Senate’s deliberations on President Trump’s nominee for the Supreme Court, Judge Brett Kavanaugh, highlight the important role that processes of judicial selection play as an essential bulwark of the rule of law, particularly in the areas of judicial independence and accountability. Jack Knight, the Frederic Cleaveland Professor of Law and Political Science at Duke Law School and academic director of the Bolch Judicial Institute, speaks with WJP executive director, Betsy Andersen, about the topic.

This Rule of Law Talk podcast was recorded on September 5, 2018. Find links to articles mentioned and further reading on judicial selection here. Read the full transcript here.

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Transcript:

Betsy Andersen (BA): Welcome to Rule of Law Talk, a new podcast from The World Justice Project. I'm Betsy Anderson the Executive Director of the World Justice Project, and today, as the U.S. Senate deliberates on the nomination of Brett Kavanaugh to the U.S. Supreme Court, I had the great pleasure of talking with Jack Knight about the U.S. approach to judicial selection, it's rule of law implications, and how it compares to the way that other countries around the world choose their judges. Professor Knight is the Frederick Cleveland Professor of Law and Political Science at Duke University and he also serves as the Academic Director of Duke's Bolch Judicial Institute. A renowned political scientist and legal theorist, Professor Knight's research focuses on the rules and norms that organize human activities and nations. In addition to the study of the motivations and decisions of judges, he has examined the effects of the norm of extensive prior judicial experience as a prerequisite for service on the U.S. Supreme Court as well as several other aspects of how courts make decisions and how judges choose their positions in opinions. Thanks for listening to what I found to be a fascinating discussion and stay tuned for more episodes of Rule of Law Talk. 

Hello and welcome to the World Justice Project's Rule of Law Talk, a new podcast series sponsored by the World Justice Project to bring expert perspectives on rule of law topics of the day. Our podcast today is focused on a topic of current interest: judicial selection. The United States Senate's deliberations on President Trump's nominee for the Supreme Court, Judge Brett Kavanaugh, highlights the important role that processes of judicial selection play, contributing to both the quality and independence of the judiciary as an essential bulwark of the rule of law. Under the U.S. Constitution, power to appoint Supreme Court justices rests with the president, subject to the advice and consent of the Senate, and Supreme Court justices hold their offices during good behavior, that is, for life, as long as they commit no impeachable offenses. 

We tend to take these arrangements for granted, but looking at international standards and around the world at the processes used in other democracies, we learn this is not the only way or even perhaps the best way to guarantee an effective and independent judiciary. To help us understand the U.S. approach to judicial selection and to put it in this international and comparative perspective, I'm delighted to welcome Professor Jack Knight, the Frederick Cleveland Professor of Law and Political Science at Duke Law School and Duke's Trinity College of Arts and Sciences, where he also serves as Academic Director of the Bolch Judicial Institute. Professor Knight is renowned internationally as a political scientist and legal theorist, and we at WJP are particularly proud to count him among the members of our Rule of Law Research Consortium a group of more than 50 leading scholars from diverse disciplines who work with us to advance research and learning about the rule of law. Professor Knight, welcome and thank you for sharing your insights with us today. 

Jack Knight (JK): Well, thank you, Betsy. It's nice to be here. 

BA: Well, let's dive right in and learn a little bit about the U.S. judicial selection process. If you would, can you outline for us the choices that are framers made in the U.S. Constitution, how they got there and what motivated the choices that they made about how we select our judges, in particular our Supreme Court justices. 

JK: Yes. Well, in the U.S. Constitutional Convention there was considerable debate over exactly how they'd go about selecting judges. In fact, it was probably the most important issue that they addressed when it came to the judiciary. There was basically a divide between those who opposed a very strong executive, and so their proposal was that all the federal judges should be appointed by Congress. Now this was kind of the dominant state practice at the time, and so it made sense that they would kind of want to replicate some of that. On the other side of the debate were those who wanted a very strong executive, and people like Hamilton and Madison were in this group, who proposed: let the president select the representatives. They went back and forth on this for a while and then Hamilton offered the proposal that the president should nominate and the Congress should then confirm for all federal judges. He proposed that twice. It was rejected twice. Then on the third time that he proposed it, they accepted it. And so that's how we have the selection system today where the president nominates and then the Senate confirms. 

BA: Interesting, so how has that compromise worked out in practice? 

JK: Well, probably not the best example of that is what happened at the Kavanaugh hearings yesterday. But more generally, through time that particular approach has persisted in terms of selection, with the president making the nominations and then the Senate deciding. For a long period of time the Senate used the supermajority approach in the process of confirming the nominations from the president. But as you know over the last few years, at first when the Democrats were in control of the Senate, they dropped the supermajority requirement for federal judges other than for the Supreme Court. And then in the last year the Republicans were in control again they dropped that proposal for the Supreme Court also. So now we have a system where the president nominates and then all they need is 51 votes in order to confirm. 

BA: And how often does the Senate agree with the president's nominations? 

JK: Well, when they had the supermajority there were often instances where the Senate would reject a nominee. I mean it was a minority, clearly, but there were several instances where that would happen and sometimes it happened on the Supreme Court. Under the new system of 51, it's been fairly easy for the Republicans, since President Trump has been in office, to get through whatever nominees they propose. 

BA: And thinking about this in rule of law terms, how does this approach to judicial selection contribute to a strong effective and independent judiciary? 

JK: Well right, it raises a lot of interesting issues here. In part I suspect that your assessment of whether the people that get appointed to the court now are satisfying the rule of law, probably depends in part on where you come down on some of these issues about what the rule of law stands for and what it means and what judges should be doing. On the question of the independence of the judges, the system has remained in place and so there are certain sort of procedural requirements which give the judge's authority that can't be changed. But in terms of the relationship between the ideology of the judges, for instance, and the ideology of the parties—that has changed over time, and as we see both in terms of certain Democratic nominees and certain Republican nominees, they tend to line up more with the ideology of the president that's nominating them. That's become partisanship and arguments about those types of things obviously really increased over the last couple of decades. 

BA: So, the upshot of that is we've got a system where perhaps the judiciary is not playing it's rule of law role of providing a check on the executive as well as maybe was originally intended. 

JK: No question that there are new issues about the extent to which the judiciary would be checking, and the role that it plays in the separation of power systems. Can I say one other thing that I wanted to raise about the initial selection process? One of the things that's quite distinctive about the United States and what makes the selection of judges even more important, and that's obviously the issue that you mentioned in the introduction about life tenure. With the judges being able to be in power except for good behavior, and with Congress being the only one that could decide what a lack of good behavior would be, the life tenure really does make each one, especially at Supreme Court level, make each one of these appointments extremely important. 

BA: The stakes are high. 

JK: That's right. The stakes are high, and they're going to be potentially on the court for quite a long period of time. That practice, the reason why the Constitutional Convention put in that practice, was because that was the British practice. That's how it had been done in Britain, and it was also a growing trend in the States at that time, so it made sense that they would put life tenure in. Now one interesting issue, of course, is that since that time life expectancies have changed and changed quite considerably. 

BA: Interesting. 

JK: And so people that are going to be on the court are actually going to be on the court, and the data points this out, that they're actually going to be on the court for a considerably longer period of time than they would have been at the time the Constitutional Convention. 

BA: Very interesting. And the U.S. system is quite unusual globally for according that life tenure, is it not? 

JK: Yes it is. It's one of a very few. There are a few other countries that actually use life tenure, but even some of those that use life tenure create sort of mandatory retirement provisions at a certain age. I'm thinking of countries like Canada, Australia, a number of others, put a limit, usually it's around 70 or 75 years, on mandatory retirement. And so the United States is one of the few that really allow this to extend as long as it does now. 

BA: Interesting. I was speaking not long ago with some judges of the High Court in Uganda and they raised this issue and were really incredulous that we had life tenure for our federal judges. And it's really a tradeoff between accountability on the one hand, how do you hold judges accountable if they are so independent and have their jobs for life, versus their independence. 

JK: You know that independence versus accountability is that tension that just runs throughout the judicial process. I think you're absolutely right about that, and the idea behind the idea of life tenure was primarily as a way of helping to assure independence, and we can see how that does work in certain instances because let's compare this to a number of countries, especially a number of European countries, that put limited terms on judicial appointments. France and Germany fall into that category. And so you get appointed to the highest constitutional court, you're on for a period of years, and then that's it. Differently, some of the countries that put fixed terms allow for the possibility of retention or renewal. And so in these alternative institutional structures there's a lot of play on that balance between independence and accountability. But obviously the more independent you make the judges then in a certain sense the less accountable they can be. 

BA: And in the U.S. system, we have life tenure, that gives them great independence, how do we hold them accountable? 

JK: That's a very good question, and one of the questions might be accountable to whom? You know some of the judges I think see their primary responsibility to be to be accountable to the president and the party that appointed them. Many others see it as the idea of, well, we have a rule of law system and we have to be accountable to the rule of law system. In the federal system, accountability in the United States is fairly weak. Judges can really do whatever they want to do. And we really have to count on their good faith to sustain the rule of law. 

BA: And that's, I guess, what many of the questions in the confirmation hearings are going to—is really probing who Judge Kavanaugh and what Judge Kavanaugh considers himself accountable to. 

JK: Right, you know I think part of it is accountable to whom and then accountable to what? And here, I think, we have to be fair and say that there are many judicial issues that come before the courts where there are debatable propositions. And so there's more than one way to decide the case and more than one way that judges would think would be appropriate or accountable or consistent with the rule of law. It's not always black and white, obviously. So there's a range of that. But the question becomes, how far do judges then deviate from what would be generally considered sort of a norm in most circumstances? 

BA: Right, interesting. Maybe we can step beyond the United States borders and put our experience in a broader international and global context, in particular, thinking about judicial selection. We talked some about judicial tenure. Tell us about some of the ways in which other jurisdictions choose their judges, what the international standards are, and what does international law say about this? 

JK: Yeah, it's very interesting. International law doesn't say that much, in a sense, about the particulars of this, but if we start to contrast the United States comparatively with other countries, I think that there are probably three issues that we might talk briefly about. The first one would be qualifications for office. What qualifies you to be a nomination to a federal judge. And the reality in the United States is that really the Constitution and the Constitution Convention says little if anything about this. Almost anybody could be a judge. And contrast that with, let's use Europe for an example. Where there is variation, but what's quite important in most European cases is that they do have a certain stated qualifications which tend to constrain the pool of people who could become a judge: age for instance. And two other things which I think are quite distinct. One is the requirement of legal education, which is not a requirement in the United States. And the second is the issue of legal experience. A number of countries have number of years of legal experience before you can select someone for the bench. It often runs around anywhere from nine to 12 years of experience in a number of these countries. They have certain qualifications that they say are prerequisites to being on the court. We don't have those in the United States. In fact some friends of mine did an analysis of justices to the U.S. Supreme Court a few years ago, just in the 20th century to see how many of them would have qualified for some of the European courts. And their analysis suggests it might be 30 to 35 percent would have satisfied the requirement of some other countries. Now that doesn't mean they weren't good judges. It just means they wouldn't have satisfied those requirements. 

BA: We have a different process and qualifications. 

JK: Yeah. And that sort of thing. Now what is interesting about the Supreme Court if you look at just say the 20th century into the 21st century, even though there are no formal qualifications it seemed to emerge a set of informal norms about types of people they were looking for. The one that I want to point out is the dramatic increase in prior judicial experience. Almost all of the people get appointed now that the U.S. Supreme Court had been from the U.S. Court of Appeals. And so even though there have not been these formal requirements, informally, you know and you can argue both sides of this. I wrote a paper several years ago with a couple of colleagues who suggested this movement towards prior judicial experience in certain cases hurts the effort to diversify the courts. So I think that there are a number of things that can be thought of in terms of this debate, but the general point is over time there have been sort of informal norms that tend to emerge that serve the same function as the European qualifications. So I'd say qualifications is one thing. 

JK: The second thing, the general issue we would talk about is selection. And in most countries around the world selection takes place very differently from the way it does in the United States. Some are selected by the executive branch. That happens in a number of countries, but in almost every instance the executive, he or she, has to make the choices from a list of potential nominees who've been established by some commission or council. So there's an independent body that puts together a list, and from that the executive can choose. And similarly in other countries the selection is done by the legislative branch, but even there they tend to be as function of various sorts of commissions. 

BA: We've heard some in the U.S. about the role of some non-governmental actors. So for example the Federalist Society preparing a list of potential candidates for the Trump administration, the American Bar Association over the years has played various roles in kind of vetting candidates. Where did where did those practices come from and how do you think they work? 

JK: I think that's an interesting point. We do have sort of informal organizations that have played a role in the vetting process for federal judges. For a long time the American Bar Association had a role to play. Basically it was a role to sort of confirm that the basic qualifications were in order. So for the nominees, the ABA would say basically that they satisfy the requirements to be somebody considered for the process. Now that didn't really remove that many people process, because the ABA had a pretty wide range of assessments in terms of quality, so most people that have been nominated by a President did get through the ABA. But it did have that role for quite some period of time. That role has really lessened in the last several years for a whole set of reasons I guess perhaps it was because they would tend to endorse almost everyone that was nominated. It's not clear to me about that, but it doesn't have quite the same effect that it once had. In terms of the Federalist Society, every indication is, in terms of effectiveness, the Federalist Society has been extremely effective in nourishing a group of young scholars who wanted to be judges and leading them down the path towards nomination when Republicans have been in power. Now there's going to be disagreement about whether we like that or not, but in fact, in terms of effectiveness, the Federalist Society has been incredibly effective. 

BA: So in some ways the Federalist Society, at least when Republicans are doing the nominating, is playing the kind of role that you see in Europe by some of these independent bodies that are putting forward slates of candidates. 

JK: Yes, and in fact, since President Trump has been in power, yes that's exactly the case. And there's not been a comparable liberal organization that has played the same role that the Federalist Society has played, at least not to the same extent. And Brett Kavanaugh is a perfect example of somebody who has, from the time that he first graduated from law school, he's anticipated the roles necessary and that steps necessary to become a judge and work with Federalist Society in that process. 

BA: Is there any discussion or having a body like there is in some European countries that was maybe be less partisan, maybe bipartisan, or nonpartisan and would put forward slates? 

JK: There are organizations that talk about that sort of thing. One group that has been very insightful in terms of thinking about this issue is the Brennan Center. They've done a lot of work studying selection and they've issued some papers which do a very nice job of pointing out ways that we could enhance both the independence and accountability of judges in the United States. But to my knowledge, and of course this may be going on and I'm just not aware of it, there hasn't been any concrete efforts to do that. And right now in terms of the federal judges I see no enthusiasm on the part of either the Republicans or the Democrats to turn it over to an independent body. 

JK: The third thing, I guess, is restating what we talked about a few minutes ago. In addition to the comparative differences in terms of qualification selection, there are also differences in terms of tenure. I've already mentioned this. Life tenure, which we have in the United States, is very unusual in other countries. Either by fixed terms or by mandatory retirement, they just tend to rule that out. 

BA: I don't want to put you on the spot, but I'm curious if you were a framer, if you were at that constitutional convention, what would you have opted for or argued for? Would you have supported our system or what we've seen in other places? 

JK: It's hard to say. There's no perfect system, but I would be looking for characteristics of a system that tended to maximize diversity in the judiciary. Diversity on many dimensions because the issue is that most of the most important questions that go before the court have more than one plausible answer. And people in society and experts in society will disagree about these things. And so it seems to me to the extent to which we can create a system where different perspectives come into play and work together to try to resolve these legal issues we're that much the better for it. That would be one of the ways we'd be closest to capturing some of the desirable features of independence and impartiality and the rule of law. Only when all of the legitimately different approaches come together to try to sort these things out. I think if we had a system like that, then we could be close to capturing what would be the perfect system. I think that'd probably involve independent commissions. But what I really look for at the end of the day, in terms of most issues of institutional design, is to try to look for some kind of balancing of diverse interests. 

BA: Yes of course, because of course our judiciary is our least representative or least democratic, formally democratic, branch. So if there are ways in which we can build some of that representativeness into the selection process that might compensate for that. 

JK: I think that's right. If we are really committed to the rule of law then we should be committed to having these diverse interests play it out to see where we go on with legal questions and not allow one political party, whether it's the Republicans or the Democrats, for several years to just dominate that discussion. 

BA: Well, then that raises the question about judicial elections. Of course some of our states elect their judges. Is that a preferable approach to give you a representative judiciary? 

JK: That's an interesting question. I wish I had a good answer for you. A majority of the states elect judges now. And so it's very common in the United States. It is very uncommon in the rest of the world. In many parts of the world they just don't understand this idea about electing judges, and there are variations in terms of the institutional structure. Some are just direct election. Some are sort of a mixed system of partial appointment and then reelection. So there are a number of different ways that it plays out. What I think that designers of these institutional procedures think is that elections will make judges more accountable. In a certain sense that's inevitably true. 

BA: It goes back to the choice we were talking about before between independence and accountability. Elections would give you a more accountable judiciary, accountable to the electorate, but perhaps less independent. 

JK: Exactly, and so that then also gets to the issue of basic rule of law questions. There's no question that the research suggests that elections do affect judicial behavior. There's a lot of evidence to support that. And you can see it both in terms of contrasting elections versus appointment systems, and you can also see it if you do time series on judicial decisions, their decisions can change the closer they get to an election. Basically for re-election, you can see those differences. So it does affect it. Most of the research has really focused in areas of criminal law and you can see longer sentences closer to the period of time of re-election, that kind of thing. So it does have an effect. The question is whether the alternative, which would be a completely independent judiciary with no or very little monitoring or assessment or accountability, whether that would be better. It's really hard to sort that out. But elections, which are dominant at the state court level in the United States, do clearly weigh on the side of accountability. 

BA: Very interesting. I should say we're going to post on our website some links to some of the related articles and studies and resources that Professor Knight has mentioned. Let me just finish our conversation again looking to the headlines and some challenges to judiciaries and their independence that we are seeing in different places around the world. We've read a lot in the last several years about the government of Turkey and President Recep Tayyip Erdogan's dismissal of thousands of judges from their posts over the last couple of years. Similarly in Poland headlines recently have pointed to efforts that the ruling party is undertaking to weaken its constitutional court and pack its Supreme Court with judges who are sympathetic to it. Folks are quite critical of that set of developments and warn that we are maybe in Poland going to see a return to unchecked one party rule like we saw during the communist times. What are we seeing here in these instances and in others globally? In the World Justice Project's Rule of Law Index, we see trends in a decline in "Constraint on Government Powers" around the world, including in the United States over the last couple of years. Is this just kind of the normal ebb and flow in the rule of law and good governance and we'll see the pendulum swing again? Or is there something broader, more systemic and permanent that is happening in terms of the independence of judiciaries? 

JK: Well what you defined is clearly what we're observing, and challenges to the judiciary seem to be quite widespread. It's unclear whether it's just ebb and flow or something more systematic, but I think it gets to sort of a fundamental issue about institutional design more generally, I think, but clearly in terms of thinking about the judiciary. At the end of the day we can design all types of institutional procedures and mechanisms that we think will in fact enhance the rule of law, create independence, impartiality and that sort of thing. But each of these, I mean it sounds obvious, but each of these institutional forms that we design, they're really based at the end of the day on the belief that people are committed to the process. So in a certain sense they have to be committed to the rule of law. 

BA: Which people? The citizens? Our elected leaders? Or everybody? 

JK: The judges, the elected leaders, everybody. They have to be part of it because the rules we create, the institutional mechanisms that we create are only as good as the willingness of the people to follow. I mean there's a certain sense in which all these things are sort of self-enforcing, just like democracy, just like a rule of law. To a certain extent we have to be committed to it as opposed to being committed to getting our own way all the time. And if the actors involved in the process, judges and elected officials, aren't committed, for instance, to the checks and balances approach, or the separation of powers, then none of these systems are going to work. Think about the United States just for a second and its separation of powers system. It's based on the proposition that the executive branch, the legislative branch, and the judicial branch are going to have competing interests over certain types of issues and certain types of policies. And it's only those competing interests that motivate them to check each other. And when they either don't think the process itself is important or if they think "Well I have the same interests as the other branch," then the checks and balances tend to get undermined. 

BA: Fascinating. Well that's a very important perspective and lens through which we can be watching the nomination hearings over the coming days for Judge Kavanaugh. 

BA: Thank you so much, Professor Knight. This has really been a fascinating conversation. Do you have any concluding observations or reflections? 

JK: Well I would just say that in the United States like a lot of things in our politics now that have become more polarized, so has the judicial process in a certain extent. And so it's clear that what's happening in the Kavanaugh hearings this week really isn't what was envisioned in the process in a certain way and it will be interesting to see what happens in the next several years. Let's say, for instance, if the Democrats were to take over the Senate next time at the mid-terms, how will they act from this point forward in terms of the way the Republicans have been acting over the last couple of years. Those sorts of issues they implicate the judiciary in ways that are quite considerable. 

BA: Well we will certainly be watching that closely, and are very grateful to you for your insights and perspective on this current topic. Thank you again to Professor Jack Knight of Duke University Law School and the Trinity College of Arts and Sciences where he is the Academic Director of the Bolch Judicial Institute. We're delighted to have had you join us today and look forward to future conversations. 

JK: Thank you for having me.

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