Judging the JAC: How Much Judicial Influence Over Judicial Appointments Is Too Much?

Judicial involvement in judicial appointments is valuable. Judges possess unique perspectives on the qualities required for judicial office as well as the needs of the judicial system. Such perspectives should help to shape individual selections as well as the aims, priorities and structures of the selection regime as a whole. Hence, the pertinent question is not whether judges should exercise influence, but how much, what sorts and at which stages of the appointment process. To my mind, these are amongst the most challenging questions with which those responsible for designing, operating or scrutinizing a judicial selection regime must grapple. Questions such as these will give rise to rival and opposing views, not only at the time at which a new appointment regime is introduced, but also periodically thereafter, as and when experience suggests that judges exercise too little influence or too much. During the Judicial Appointments Commission’s (JAC) first decade, however, there has been only relatively muted discussion of these questions. A handful of academics have argued that judges today exercise too much influence. However, their concerns are not widely shared by judges, politicians, officials or lawyers. Or more bluntly put: several stakeholders – and the JAC and the senior judiciary in particular – seem wholly unconvinced by academic critiques that judges now possess too much sway over appointments.