Confirmation hearings for Supreme Court judges?

James Grant in this month’s Prospect has raised the issue again of the composition of the Supreme Court (new chamber, right), what we know of the judges’ ideological leanings, and whether we should have American-style confirmation hearings on their appointment.

Alexander Horne, in his paper last year on the problems of confirmation hearings for Supreme Court judges (pdf), suggested a joint committee of Commons and Lords to scrutinise appointments.

This seems to me a distraction, an attempt to mitigate the harm already done by the growth of judicial activism. The root problem is that it is the natural inclination of judges to confuse their own social, cultural and ideological assumptions with the “reasonable” interpretation of the law. This tendency is likely to operate as if on a ratchet in a settled legal system that venerates precedent, so that, for example, when one judge decides that he or she has to interpret something like the ECHR in a way that plainly goes beyond the intentions of its drafters (the “living instrument” doctrine), other judges then elaborate this into a new legal principle. Much the same has happened with the growth of judicial review since the 1970s.

To be tackled at source, the Human Rights Act would have to be rewritten explicitly to constrain judges, and Britain would probably have to withdraw from the European Court of Human Rights (whether it would be possible to do so without also repudiating the Convention is a question that has not yet been answered – I discussed that here). In addition, the judge-made doctrine of judicial review could be defined and curtailed in statute.

If the causes of judicial activism were removed in this way, the need for a new superstructure of vetting, confirmation hearings, would diminish.

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• http://www.facebook.com/people/Ron-Broxted/100000542213598 Ron Broxted

  Dear Mr Rentoul, the title really grinds my gears. “Supreme” Court, a la USA. However America is a functioning democracy, not a de facto police state like Britain. The “Supreme” court was established as the U.K was losing cases at an alarming rate in Strasbourg. The facade of something other than the Law Lords was implemented. Britain merely “cherry picks” which parts of the ECHR it wants, very much not what signatories agreed to. The Marper ruling (no innocent samples of the now illegal National DNA Database) still hasn’t been adopted. What Would Tony Do?

• http://pulse.yahoo.com/_RWQW5VGWYSRA5K3VBT7ZWOEJLE Stephen

  America is a functioning democracy?  Hardly; the void between citizen and policy is even larger there than here and the cash and power required to bridge it greater still.

• http://www.facebook.com/people/Ron-Broxted/100000542213598 Ron Broxted

  I appreciate your point but – the US has the 5th amendment (abolished here). No internment without trial (Git’mo excepted) and no illegal DNA database. 

• ALH1

  There is an interesting post on this subject from UKHR Blog:
   
  http://ukhumanrightsblog.com/2011/06/06/who-should-appoint-our-top-judges/