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Clark, Mary L. (2011)
Languages: English
Types: Unknown
Subjects: LAW
The Senate’s role in judicial appointments has come under increasingly withering criticism for its uninformative and “spectacle”-like nature. At the same time, Britain has established two new judicial appointments processes—to accompany its new Supreme Court and existing lower courts—in which Parliament plays no part. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts (albeit created 220 years apart*).\ud The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early American state constitutions, Articles of Confederation, and U.S. Constitution, noting how the Senate’s role has evolved since the time of the Constitution’s ratification. (Part I) The Article then charts the principal ideas and concerns motivating the U.K. Constitutional Reform Act’s (CRA) overhaul of Britain’s judicial appointment systems and rejection of a parliamentary role. The Article also notes the Brown Administration’s post-CRA exploration of the possibility of parliamentary involvement in judicial (and other) appointments. (Part II)Thereafter, the Article compares and contrasts the reasons for inclusion and exclusion of the legislature in U.S. and U.K. judicial appointments. (Part III)\ud * [The U.S. Supreme Court was established by the U.S. Constitution in 1787 and began operating in 1789. The U.K. Supreme Court was established by the Constitutional Reform Act 2005 and began operating in 2009.]
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    • 17. N.H. CONST. of 1776, available at http://avalon.law.yale.edu/18th_century/nh09.asp.
    • 18. MD. CONST. OF 1776, available at http://avalon.law.yale.edu/17th_century/ma02.asp.
    • 19. N.Y. CONST. of 1777, available at http://avalon.law.yale.edu/18th_century/ny01.asp.
    • 20. THE FEDERALIST NO.77 (Alexander Hamilton).
    • 21. ARTICLES OF CONFEDERATION of 1781, art. IX.
    • 22. Article II, Section 2 of the U.S. Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . Judges of the Supreme Court, and all other officers of the United States.”
    • 23 See infra Part I.B.
    • 24 See infra Part I.B.
    • 36. This story is well-told in a number of sources. See WOOD, supra note 17; see also BAILYN, supra note 5; MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2004); DANIEL HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD 1664-1830 (2005); GORDON S. WOOD, EMPIRE OF LIBERTY 22 (2009) [hereinafter WOOD, EMPIRE OF LIBERTY] (“By the 1780s many leaders had come to realize that the Revolution had unleashed social and political forces that they had not anticipated and that the 'excesses of democracy' threatened the very essence of their republican revolution.”).
    • 37. James Madison, “Notes on Hamilton's Speech to the Constitutional Convention on June 13, 1787,” 2 RFC, supra note 17, at 282-83.
    • 38. Id. at 74 (Madison discussing the need to check legislative power).
    • 39. WOOD, EMPIRE OF LIBERTY, supra note 24, at 31-36.
    • 197. Id.
    • 198. Section 2 of the CRA is entitled, “Lord Chancellor to be qualified by experience,” and it defines “qualifying experience” as service as a cabinet officer, MP, peer, practitioner, law professor, or “any other relevant qualifying experience.” Constitutional Reform Act, 2005, c. 4, § 2 (U.K.).
    • 200. JUDICIAL APPOINTMENTS REPORT I, supra note 128, at 36-37. This ongoing need for diversity is amply illustrated by the current composition of the U.K. Supreme Court, where 11 of 12 justices are male, all are white, and 11 of 12 are Oxbridge educated (i.e., educated either at Oxford or Cambridge, or both). See, e.g., the Supreme Court, “Biographies of the Justices,” available at http://www.supremecourt.gov.uk/about/biographies.html 201. See Constitutional Reform Act, 2005, c. 4, § 63(2) (U.K.).
    • 229 See FN 221.
    • 230. See, e.g., JUDICIAL APPOINTMENTS REPORT II, supra note 156, at 9 (testimony of Mr. Drabble, Bar Council Chair, on November 18, 2003).
    • 232. The Author uses the term “critique” rather than “criticize” in recognition that Parliament is not meant to criticize judges or judicial opinions. See, e.g., SELECT COMMITTEE ON THE CONSTITUTION, RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT, 2006-7, H.L. 151 (U.K.).
    • 233. As mandated by the Human Rights Act 1998. Admittedly, hypothesizing as to what Parliament “may believe” is a fiction, where Parliament is an institution composed of more than 600 members.
    • 234. See, e.g., ALEXANDER HORNE, HOUSE OF COMMONS, THE CHANGING CONSTITUTION: A CASE FOR JUDICIAL CONFIRMATION HEARINGS? (2009), available at http://www.spg.org.uk/spg-paper-1.pdf.
    • 235. See, e.g., 687 PARL. DEB., H.L. (5th ser.) (2006) 3 7 (U.K.) (debating relative weight of parliamentary sovereignty versus judicial rule of law determinations in the post-HRA era).
    • 240. MINISTRY OF JUSTICE, CONSTITUTIONAL RENEWAL, supra note 189, at 28.
    • 241 See FN 208.
    • 243. See Children's Chief No Patsy-Balls, BBC NEWS (Oct. 19, 2009), http://news.bbc.co.uk/1/hi/8313572.stm; see also Peter Waller & Mark Chalmers, An Evaluation of Pre-Appointment Scrutiny Hearings, in HOUSE OF COMMONS LIASON COMMITTEE, THE WORK OF COMMITTEES IN SESSION 2008-9, H.C. 426, at 68 (U.K.).
    • 245. See id. Tushnet also articulates a universalist element of comparative constitutional law analysis, mainly relevant to discussions of human rights norms and not to the question of legislative involvement in judicial appointments. Id. at 68-72.
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