Appointment of Judges Compared

In one line

Judges are appointed by other judges in India, by the President with the Senate's consent in the United States, by parliament in Switzerland, and by a commission recommending to a minister in the United Kingdom.

In the wording a student can write in an exam: methods of judicial appointment may be classified by who selects, who confirms and who appoints, and the four systems on this topic between them use judicial selection, executive nomination with legislative confirmation, legislative election, and selection by an independent commission.

The four methods

India: judicial selection. Article 124(2) provides that every judge of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and of the High Courts as the President may deem necessary, and that in the case of the appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 makes corresponding provision for High Court judges, requiring consultation with the Chief Justice of India, the Governor of the State and, except for the Chief Justice, the Chief Justice of the High Court.

The word consultation was construed to mean concurrence in the Second Judges case, and the collegium was created. Worked in [The Indian Collegium].

United States: executive nomination and legislative confirmation. Article II section 2 gives the President power, by and with the advice and consent of the Senate, to appoint judges of the Supreme Court. Lower federal judges are appointed the same way. A simple majority of the Senate confirms, the filibuster having been abolished for lower court nominations in 2013 and for Supreme Court nominations in 2017.

Switzerland: legislative election. Article 168 provides that the Federal Assembly elects the members of the Federal Council, the Federal Chancellor, the judges of the Federal Supreme Court and the General. Judges are elected for a term of six years and are re-eligible, and the seats are allocated among the parties by an understanding similar to the magic formula.

United Kingdom: an independent commission. Section 61 of the Constitutional Reform Act 2005 creates the Judicial Appointments Commission, a body corporate, with Schedule 12 providing for its constitution. It selects candidates on merit and recommends; the Lord Chancellor may accept, reject once with reasons, or ask for reconsideration once. For the Supreme Court a separate selection commission is convened under sections 26 to 31.

Canada. Section 96 of the Constitution Act 1867 gives the Governor General the appointment of the judges of the superior, district and county courts in each province, exercised on the advice of the federal Cabinet, with advisory committees and, since 2016, an independent advisory board for the Supreme Court.