A recent “tug-of-war,” as the Hindustan Times puts it, over judicial appointments in India reveals the superiority of nomination/appointment processes that put the executive second, rather than as initiator, in the process.
For India’s Supreme Court–one of the most active constitutional review bodies among the world’s high courts1:
Appointments and promotions of judges are done by the President on the basis of recommendations made by a panel of Supreme Court judges which are forwarded by the government.
“President” here refers to the “mostly ceremonial” head of state2 and “government” refers, of course, to the federal executive cabinet, headed by the prime minister. Note that the first mover in nominations is a judicial “panel” (the details of which are not clear to me) and the executive only responds. This sort of process has long appealed to me as a preferable reform model for the US Supreme Court. And while I am not aware of a process of this sort ever having been seriously proposed for the US Supreme Court, it is not as “foreign” to American judicial practice as it may seem. In fact, several US states have moved to broadly similar reform models in recent decades.3
Recounting the “tug-of-war,” the HT says:
The trouble started when on October 18 the Supreme Court panel, responsible for judges’ appointments and promotions, recommended the three [state] chief justices for promotion to the Supreme Court.
Hindustan Times reported on October 27 that the panel had overlooked the three senior-most high court judges in the country – Justices A.P. Shah, A.K. Patnaik and V.K. Gupta – chief justices of Delhi, Madhya Pradesh and Uttarakhand high courts, respectively.
Last month, for the first time in 15 years since the present system for appointments and promotions was adopted, the Prime Minister’s Office (PMO) refused to endorse the recommendations and sent back the file to the apex court for reconsideration.
The PMO pointed out that the three judges were junior to several other judges eligible for promotion. It also drew the panel’s attention to the fact that state and gender representation had been overlooked.
Six states — Madhya Pradesh, Jammu and Kashmir, Jharkhand, Chhattisgarh, Uttarakhand and Sikkim — are not represented in the Supreme Court. Since June 2006, the court has also been without a lady judge.
However, in a snub, the SC panel sent the same names back.
Rules say the government has the option to return the recommendations once to the Supreme Court, but had to accept them the second time. [emphasis added]
And thus did an attempt by the federal executive to shape the highest court fail.
1. Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven: Yale University Press, 1999), specifically Table 12.2 on p. 226.
2. Chosen by an electoral college made up of federal and state legislators.
3. Florida is one such case. I distinctly recall the (presumably willful) mis-characterization of the Florida Supreme Court after its ruling demanding a recount in Bush v. Gore: It was widely pointed out that the court’s majority was appointed by Democratic Governors. Technically correct, but not in the sense most American readers or listeners would understand it, for the Florida court is not appointed in an executive-initiative process like the federal one. Rather, like the Indian process, a judicial panel forwards nominees to the Governor, who may reject a proposed justice, but not initiate his preferred alternative.
It so happens that right now in Florida, there is an apparent attempt by the Governor to influence the judicial nominating process that has echoes of the Indian case.