Judicial selection

Political cultures develop from the peculiar social, economic, and historical experiences of a nation. Cultural configurations offer perhaps the single most important explanations for why certain institutions thrive in one nation and languish in another. The judiciary of a nation, as any other governmental institution, is affected by the culture in which it is located. Innovations and experiments in judicial structures and judicial powers have been resilient in some cultures despite pervasive criticisms, whereas similar experiments have been short-lived in others.

Implicit in the question of the role and power of the judiciary in a country's scheme of political power distribution is the issue of who names the judges. Recruitment is perhaps the key link between a culture and its judiciary. This means to reinforce old values and inculcate new ones through the socialization of decision-makers. Lodging the authority to designate judges in the executive, the legislature, the people, or some combination thereof has a direct bearing on how judicial power will be exercised. Debates on the best method for selecting judges are ongoing in legal, editorial, and academic circles.

The controversy has tended to be characterized either by rhetoric or by empirical testing of the alleged failures and benefits of the various elective, appointive, and civil service systems currently in use in the West. The issues revolve around preferences for judges who are accountable to the public or who are independent. The philosophical and historical origins of the two positions tend to be ignored, as whether judges should be independent or held accountable for the exercise of their powers is, a value laden question that empirical research is ill-equipped to resolve.

A consequence of this relatively prevalent attitude is that fundamental issues of judicial power, political power, and the judicial role are set aside. The origins, both normative and political, that affected the evolution of the schemes now used in the United States and France. Further, our effort is a recognition that only through cross-cultural analysis can answers about law and politics that transcend a single nation-state is found and that theory building about judicial institutions as political structures proceed.

Judges, like members of other political elites, are crucial to the political process of allocating values for society. The parameters of their influence in this political realm vary in different institutional and cultural settings. Judges are, for example, generally recognized as policy-makers in the United States. Prerogatives of judges in other places, such as France, are much more limited and do not extend to invalidation of governmental and bureaucratic actions.

Regardless of the precise sphere of power of judges in a given society, those who sit on the bench are important players in the schemes of political power and societal values. The selection of jurists, therefore, becomes an important variable in political equations. The success of comparative inquiry largely depends on a conceptual framework that is capable of providing a common matrix into which political activity, events, and behavior can be placed. Recruitment of judges is the framework we have chosen, for, in its broadest sense, the term refers to all of the processes by which a judge arrives at his position.

The term includes not only the formal process of selection, whether by election or by competitive examination, but also qualifications (formal and informal), availability of opportunities, and career ladders that lead to a judicial position. The process of recruitment is set into three stages: official recognition, selection, and assigning of roles. The first, official recognition develops from a person's position in the arrangement of political opportunity, his political socialization and opportunity costs.

The next phase, selection, includes the communication between candidates, applicants, supporter and the choosing organization. The last phase, role task, prefers the applicant and legitimizes his supposition of the workplace. This process may be envisioned as a funnel, in which individuals are progressively excluded from consideration as each stage further defines who is eligible. "In each phase, individuals are selected and rejected; some are winners, others are losers. At various times a certain criteria (age, social status, race, religion, legitimacy of birth, or sex) have been formally established for judicial positions.

In other eras, particularly during the latter half of this century, achievements, such as legal education, examination scores, and apprenticeships, have been emphasized. Nonetheless, inscriptive elements may continue to affect judicial recruitment covertly or indirectly. Shifts and changes in the certification and selection phases of judicial recruitment in both nations are the focus of this study. Much attention in the United States has been placed on the effects of recruitment processes on the character of the bench.

More recently, scholarly research has attempted to determine if women and minorities follow different paths to the bench. Interest in the characteristics of the judges who are selected is predicated on the assumption that the complex of background characteristics of any given judge will affect how that person will perform in office. Perceptions of the proper role of the judiciary and of particular policy preferences are assumed to be formed by the experiences that precede one's becoming a judge.a