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  • Dr. Bell Yosef

Appointment of the Highest Court’s President

Comparative Overview

 

By Yael Sirkis, under the guidance of Dr. Bell Yosef | May 2023


How Should the President of the Supreme Court Be Selected?


The President of the Supreme Court is the figure who stands at the head of the judicial branch, which constitutes one of Israel’s three branches of power. Responsibility for leading an independent and efficient judicial branch, guided by justice and fairness, is borne by the President, who must navigate in the stormy seas of Israel’s diverse society. Alongside the President’s official role, they bear primary responsibility for managing the legal system and the Supreme Court’s work. [1] The President’s main roles number deciding the composition of Supreme Court judicial panels, deciding motions for leave for a further hearing, serving on the Judicial Selection Committee, granting guidelines to judges in all judicial instances, setting judicial standards, and appointing teams for assistance and oversight of judicial work efficiency. As a judge, the President is the first among equals, but thanks to their status and role, they have exceptional influence on how the caselaw develops on various topics.


At present, the law stipulates that the President of the Supreme Court is appointed from among the presiding justices, according to the Judicial Selection Committee’s choice. [2] The practice upheld, which reflects Israel’s constitutional tradition, is to submit the candidacy of the longest-serving justice on the Supreme Court to the Committee, which approves their appointment as President. This tradition is known as the “seniority system”.


Voices from parties in the 37th Government's Coalition have expressed opposition to the continuation of the seniority tradition. Their position is that there is no justification for maintaining an appointment system that is not based on skill and suitability for the position, and distances the authority to select the President from elected officials. [3] Part of the opposition to the system rests on an argument that the seniority system is not generally accepted in democratic states, and deviates from the norms in practice among other states, which invest the authority to select the President in elected officials. A bill in this spirit is currently on the table in the Knesset as part of the Government’s plan to overhaul the structure of Israel’s constitutional regime. [4] Opponents of the legislative bill argue that the seniority system constitutes a guarantee against politization of the President’s role and against the appointment of presidents who might serve the regime’s needs and curtail the Supreme Court’s independence, and therefore it should be preserved.  


In this study, we sought to learn from practices throughout the democratic world, to enrich the debate on Israel’s system for selection of the President of the Supreme Court.   


This study, which was prepared by Ms. Yael Sirkis under the guidance of Dr. Bell Yosef, analyzes a sampling of 20 democratic states with different legal systems and traditions, in order to learn about the rules, practices, and traditions of the system for selection of the president of the highest court. Naturally, focusing on a particular component of any legal system cannot provide a basis for absolute normative conclusions. Every system has various components – legal, political, and cultural – which generate a different and unique map of checks and balances. The structure applicable in Israel is not identical to any other democratic state in the world, and it is characterized by a relatively high dependency on legal mechanisms (by courts and government legal advisors) of restraint, due to the lack, or the weakness of, other mechanisms for the decentralization of power. However, even subject to this “caveat”, this comparative study raises several interesting insights, which appear on the following pages. The central conclusion arising from the comparative picture is that appointment of the President is not perceived in the world as a mechanism that should be dominated by political considerations, but rather is intended to guarantee the judicial branch’s professionalism and independence. In the majority of states (11 out of 20), selection of the president is under the authority of elected officials. From among these states, in six there are institutional mechanisms which, in practice, delegate the selection process to professional entities. Thus, although the final selection authority remains in the hands of elected officials, the process is not motivated by partisan or political considerations.


In four additional states, selection is by a combination of two branches, which does not leave the choice in the hands of the government alone. In these states, despite, and perhaps due to, the mutual checks between the two branches, the selection process has a political character. Only in one state, Australia, does the Government select the President without oversight by another branch and without other stable mechanisms to retrain its freedom to select.


Another conclusion is that the most popular selection mechanism among the states examined is selection of the President by the presiding judges. This tradition complies with the preference of 70% of the states examined to appoint presidents only from among presiding judges.


An additional point worth mentioning is the issue of how long the judge has served, which is at the core of the debate here in Israel. The seniority system is not very widespread but exists in one form or another in two states. Seniority also constitutes a central consideration in Canada, where appointments outside the tradition of seniority are the exception. It is also a relevant consideration in other states. An analysis and segmentation of the data is detailed in the paper below.


Dr. Elad Gil,

Head of Research, Tachlith – Institiute for Israeli Public Policy


President Selection Methods and the Weight Given to the Candidate Seniority Component  

Overview According to State   

 

 

Australia    

High Court of Australia  


Appointment Process

Under law, the Chief Justice is appointed through the same process as other justices of the High Court: by the Prime Minister according to an Opinion Paper of the Minister of Justice. The Minister of Justice consults, according to law, with the Attorneys General of the states. In practice, in the case of appointment of the Chief Justice, the Attorney General customarily consults with the outgoing Chief Justice and the Prime Minister, who sometimes serves as an influential force in the selection process. In the last nomination process, the consultation process was broad and included not only the state and territory Attorneys General, but also the Shadow Attorney General (opposition), the heads of the federal courts and state and territory supreme courts, state and territory bar associations and law societies, National Legal Aid, Australian Women Lawyers, and additional civil society organizations. 


Does a seniority system apply according to law/practice?

No. The Chief Justice does not have to be chosen from among the presiding justices, and there is no practice of seniority. Thus, for example, the previous Chief Justice, Kiefel, who ran against a Federal Court judge, was appointed after serving as a Justice of the High Court and was among the longest-serving justices. Her predecessor, French, was appointed after serving as a judge of the Federal Court of Australia. Chief Justice Gleeson, who served as the Chief Justice before him, was appointed after serving as Chief Justice of the Supreme Court of New South Wales.  The most recent appointment (which entered into force in November 2023), Stephen Gageler, was the most senior justice when appointed last August.  No formal skills are required to be appointed to the High Court, except the legal requirement to be under the age of 70 (the retirement age stipulated in Section 72 of the Constitution).


 

Belgium

The Constitutional Court of Belgium


Appointment Process

Ceremonial appointment by the King. Two groups of judges serve on the Constitutional Court on a linguistic-cultural basis: Dutch speakers (Flemish) and French speakers (Walloons). Each group has six judges. The judges are appointed for a long, life term until the age of 70.

According to the Belgian Constitution, each group of judges selects its own President. The term length is one year, following which a new president is selected.


Does a seniority system apply according to law/practice?

No.


 

Canada

The Supreme Court of Canada  


Appointment Process

Appointment by the Governor General (representative of the crown, a ceremonial role), as chosen by the Prime Minister. This process is anchored in law. There is a practice under which the Chief Justice of the Supreme Court is selected from among the Court’s presiding judges.


Does a seniority system apply according to law/practice?

There is a practice of seniority which is not anchored in law. Yet, it recedes in cases where there are relevant considerations against it, such as due to the candidate’s suitability for the position or a desire to serve cultural diversity. The questions of length of service and experience have a pronounced impact and constitute a central parameter but are not decisive in the selection. Additional parameters customarily considered are judicial leadership and creating a balance between English and French speaking presidents. In the last Presidential appointment in 2017, President Wagner was chosen, who was fourth in line according to seniority. Until this appointment, the last time a President was appointed not according to the seniority rule was in 1973.


 

The Czech Republic

The Constitutional Court


Appointment Process

The appointment process is anchored in the Constitution, which places the authority upon the President of the Republic (the head of state, who does not head the executive branch), with the Czech Senate’s consent. The President of the Constitutional Court’s term lasts ten years with possible reelection for an additional ten years. The previous Court President, Rychetský, served as President from 2003 to 2023, when the new President, Josef Baxa, was appointed. 


Does a seniority system apply according to law/practice?

There is no system of seniority or organized promotion process within the courts. In addition, there is no formal requirement to appoint a President from among the presiding Constitutional Court justices, and it is also possible to be appointed to two positions concurrently. Thus, for example, the current President was appointed simultaneously as both a justice and the President of the Constitutional Court, and so was his Vice-President. This was also the case for the previous appointment.


 

Denmark

The Supreme Court


Appointment Process 

The President is selected by the Supreme Court justices from among the presiding judges. The President is appointed by the Minister of Justice. There are no term limits, but they are subject to mandatory retirement age (70).  


Does a seniority system apply according to law/practice?

No. The current President, Christensen, is the second longest serving justice in the Supreme Court.


 

Finland

The Supreme Court of Finland


Appointment Process

Appointment by the President of the Republic. The President and justices of the Supreme Court are appointed based on a detailed Opinion Paper of the Supreme Court. The process is anchored in law.


Does a seniority system apply according to law/practice?

No, but there is a practice of appointing from among the presiding Supreme Court justices. For example, the current President, Tatu Leppänen, served on the Supreme Court for three years before being appointed President. The previous President, Timo Esko, served for three years before his appointment. The President before that, Pauliine Koskelo, served for five years before her appointment.


 

France

The Constitutional Council


Appointment Process

According to Article 56 of the Constitution of France, the President of the Constitutional Council (the Constitutional instance) is appointed by the President of the Republic (head of state) for a period of nine years. The President of the Constitutional Council is appointed from among the Council’s members, whether members appointed to the Council or those who are members of the Council in the capacity of their position (former Presidents of the Republic have the right to serve as ex officio Council members, with no need for a formal appointment process). Following the constitutional amendment of 2008, the President of the Republic must obtain the Professional Opinion of the Constitutional Law Committee of both chambers of Parliament before exercising their appointment authority. According to Article 13 of the Constitution, an appointment as above shall not be completed when the sum of the negative votes in each committee represents at least three fifths of the votes cast by the two committees. It should be noted that, in the case of a tie, the President of the Republic shall have the deciding vote. 


Does a seniority system apply according to law/practice?

No – selection of the President of the Constitutional Council is not based on length of service. Additionally, no age or occupational conditions are required for Council membership, and a prior judicial career is not needed. Thus, for example, the presiding President, Fabius, never served as a judge in any judicial instance. Prior to his appointment, he served as the Minister of Foreign Affairs, and before that as the Prime Minister (head of the executive branch).

It should be noted that there is a secondary seniority rule: according to Section 13 of Chapter One of the Constitutional Council Law, in a situation where the President is unable to serve, they are replaced by the longest-serving Council Member.


 

Iceland

The Supreme Court of Iceland


Appointment Process

The Supreme Court judges elect the President and Vice-President from among the presiding judges, for five-year terms. The retirement age is 65. The law does not have defined criteria for promotion within the Court.


Does a seniority system apply according to law/practice?

No.


 

India

The Supreme Court of India


Appointment Process 

Appointment by the President (Head of State) on advice from the outgoing Chief Justice and additional Supreme Court justices (where needed). The outgoing Chief Justice’s recommendation is submitted to the Minister of Justice, who delivers the recommendation to the Prime Minister. Finally, the Prime Minister advises the President on the matter and a decision is made. The appointment process is anchored in the Constitution of India.  


Does a seniority system apply according to law/practice?

Yes. According to a practice that is not anchored in law but has been recognized in the caselaw, the longest-serving judge is automatically appointed as Chief Justice. Chief justices have only been appointed outside the rule of seniority three times in India’s history, the last time in 1977. In 1993, the Supreme Court anchored the seniority rule in the caselaw, thereby preventing the Government’s ability to deviate from this rule.


 

Italy

The Constitutional Court of Italy


Appointment Process  

The President of the Constitutional Court is selected by a team of Constitutional Court judges, for renewable three-year terms. There is a convention, not anchored in law, that the judge who has served for the longest is selected by their colleagues to serve as President. Since the length of a Constitutional Court judge’s term is nine years, this means that normally presidents will serve for short periods (the average presidential term since the establishment of the Court is about a year and a half), and their term is not extended.

The selection is confidential and is based on an absolute majority (eight votes). In case there is not an absolute majority, an additional round is held between the two judges who received the most votes.   


Does a seniority system apply according to law/practice?

The seniority system is not anchored in law but constitutes a convention honored by the presiding judges. The current President, Augusto Barbera, who was appointed in December 2023, was the longest-serving Justice. So was his predecessor, President Silvana Sciarra, who was appointed in 2022. 


 

Japan

The Supreme Court of Japan


Appointment Process

The appointment process of the Chief Justice of the Supreme Court is set forth in the Constitution. Ceremonial appointment is by the Emperor following designation by the cabinet. The practice is for selection of the Chief Justice to be based on the recommendation of the outgoing Chief Justice, who selects the candidate upon the advice of the judiciary’s head directors – professional judges themselves. The practice is to accept the recommendation of the outgoing Chief Justice, due to the fact that there is substantial trust between them and the Government (by whom they are selected). Most of the chief justices who have been appointed have had a judicial career, meaning they began as judges in the lower instances and were promoted. In addition, the practice is to appoint the Chief Justice from among the presiding judges (the Constitution does not address this, but in practice, the last three chief justices served as Supreme Court justices prior to their appointment).  


Does a seniority system apply according to law/practice?

No, but the components of age and experience have a significant weight, since it is generally accepted that the Chief Justice of the Supreme Court is appointed at a very advanced age, close to the mandatory retirement age (70) stipulated by law (it should be noted that Supreme Court justices cannot be appointed before the age of 40, and at least ten out of the 15 Supreme Court justices must have held the position of High Court President for ten years or held another legal position for a total of 20 years). As a result, the length of the chief justices’ terms is usually limited to a short period, and therefore, in recent years there has been very high turnover of chief justices in Japan. Thus, for example, the current Chief Justice, Tokura, was appointed at the age of 68, and the president before him, Ōtani, was appointed at the age of 65.   


 

Mexico

The Supreme Court of Justice of the Nation


Appointment Process

The President is appointed by the Supreme Court justices (11 justices), from among the presiding justices. A regular majority is required for selection as President (the current president, Norma Piña, appointed in 2023, was selected by a majority of six versus five justices). The Constitution of Mexico stipulates that elections for the Presidency must be held every four years. A President can serve for one term only. Candidates for the position of Chief Justice must have at least four years left in their tenure to be eligible for nomination.


Does a seniority system apply according to law/practice?

No. For example, in the last appointment to the Presidency, Piña was selected, even though there was a longer-serving candidate, Gutiérrez Ortiz Mena, who had his “last chance” to run for the Presidency, due to the remaining balance of his term.  


 

New Zealand

The Supreme Court of New Zealand 


Appointment Process

The Chief Justice is appointed by the Governor General (representative of the crown – a ceremonial position), as selected by the Prime Minister. The law does not stipulate a process for appointment of the Chief Justice. According to the appointment protocol in practice, the professional selection process is led by the Solicitor General, who consults the Attorney-General and the presiding presidents of the higher courts. In any case, it is customary for the shortlist from which the Prime Minister selects the Chief Justice to be based only on the most senior, longest-serving judges.


In the last appointment, of Chief Justice Winkelmann, a comprehensive process of consultations was described, with relevant figures on a professional basis only, such as the outgoing Chief Justice, senior retired judges, the Bar Association and the New Zealand Law Society. The professional selection process headed by the Solicitor General included a panel comprised of a retired High Court judge, a retired Supreme Court justice, and the previous Governor General. The panel members considered the professional opinions from the consultations and delivered a recommendation to the Prime Minister.


Does a seniority system apply according to law/practice?

No. Two chief justices have been appointed thus far under the extant law. In both cases, it was clear that the question of length of service had a pronounced influence on the selection. However, there is no rule or tradition to appoint the longest-standing judge. The short experience thus far demonstrates that chief justices are selected from within the Supreme Court, and from among its most senior justices.


 

Serbia

Constitutional Court of Serbia


Appointment Process

The President of the Constitutional Court is selected from among the Constitutional Court justices, by the justices themselves in a confidential vote, by a majority (Article 172 of the Constitution, Article 23 of the Law on the Constitutional Court). The Deputy President is also selected in the same way (Article 25). The Constitutional Court’s Rules of Procedure (articles 10 to 12) clarify that nomination of a candidate for the President of the Court must contain the reasons for the nomination. One can learn from this that the process is based on professional qualities and abilities.


Does a seniority system apply according to law/practice?

The selection is not based on length of service. If a President is not selected, they are replaced by the Deputy President, and in their absence – by the oldest justice (Article 24).


 

South Africa

The Constitutional Court


Appointment Process 

According to Section 174(3) of the Constitution of South Africa, the Chief Justice of the Constitutional Court is appointed by the President (Head of the National Executive) after consulting with the leaders of the political parties represented in the National Assembly (the Parliament’s lower chamber) and the Judicial Service Commission. In practice, the Commission’s role in the consultation is to hold a public interview of the candidate and afterwards to advise the President about the candidate’s suitability for the position. In practice, the selection decision is by the President of the State and under the President’s exclusive discretion.


In the last appointment process in September 2021, President Ramaphosa decided to change the appointment process and called on the public (citizens and residents of South Africa) to select suitable candidates for the position, aiming to promote transparency and public participation. In response to his appeal, the public submitted 25 candidates, among whom only eight met the criteria set (the criteria included, inter alia, a detailed letter of candidacy and at least one letter of support from a non-governmental professional body). These candidates were evaluated by a committee established by the President of the State which included six senior public figures, and which was headed by a judge. The committee’s objective was to narrow the list of candidates to four potential candidates. Afterwards, the Judicial Service Commission held interviews with candidates, at the end of which it issued recommendations to the President regarding their suitability for the position. Then, the President selected from among them.


Does a seniority system apply according to law/practice?

No. The Chief Justice also does not have to be selected from among the Constitutional Court’s presiding judges. The current Chief Justice, Zondo, served prior to his appointment as the Deputy Chief Justice, but the Chief Justice before him, Mogoeng, served before that as a Constitutional Court justice, and concurrently as President of the University of Kwa-Zulu-Natal.


 

South Korea

Constitutional Court of Korea


Appointment Process 

The President of the Constitutional Court is appointed from among the Constitutional Court justices. Appointment is by the President of the Republic with the National Assembly’s consent (Section 12(2) of the Constitutional Court Act).

Appointment is also executed on a political basis. In 2006, there was a major parliamentary dispute on approval of the President of the Constitutional Court, when alongside the processes of politization of the judiciary occurring throughout the world, the Koreans began to comprehend the Court’s political influence, and they wanted it to be led by an entity that would promote a certain political agenda. This understanding prevailed, and the Parliament decided on the President of the Constitutional Court on a political basis.  


Does a seniority system apply according to law/practice?

No.


 

Sweden

The Supreme Court     


Appointment Process

According to the Constitution of Sweden, the President of the Supreme Court is appointed by the Government, on the advice of the Judges Proposals Board, which manages the entire selection process and submits proposed candidates to the Government (the Board was established after a constitutional crisis in 2011). This process is relevant both for the appointment and promotion of judges and it is anchored in law. There is also a requirement that appears explicitly in the Constitution, that in appointments to judicial positions, only professional considerations should be weighed. The President is appointed from among the Supreme Court’s justices. Alongside the President, an additional senior justice serves as the Chief Divisional Justice, who heads one of the Supreme Court’s units.


Does a seniority system apply according to law/practice?

No, but the length of service constitutes a significant consideration, at least in the appointment of the Chief Divisional Justice.


 

Switzerland

Federal Supreme Court of Switzerland


Appointment Process

The President is appointed by the Federal Assembly on the advice of the Supreme Court justices. The Supreme Court justices nominate candidates for the Presidency by confidential vote. These candidates are passed on to a parliamentary vote, in which the President and Vice-President are selected concurrently using two separate ballots. This process is anchored in law and appointment by the Parliament is anchored in the Constitution.

The President is selected from among the presiding justices in a set rotation, once every two years (appointment is for two years with an option to be reelected for an additional two years only).


Does a seniority system apply according to law/practice?

There is no automatic seniority process, since more than one candidate is nominated for the Presidency and there is also a requirement for the President to be selected by a majority in a parliamentary vote, as stated above. Additionally, the question of length of service is not defined as a binding formal requirement for appointment as President, but it seems to exist in practice - it is generally accepted that the Vice President in one year becomes the President in the next year. Thus, for example, the presiding President, Niquille, served previously as Vice President.     


 

                   

The United Kingdom

The High Court of Justice


Appointment Process 

A distinction must be made between two different officials:

1.      The Lord/Lady Chief Justice: The most senior judge who serves as the Head of the Judiciary of England and Wales. The Lord/Lady Chief Justice’s main roles are: representing the views of the judges and magistrates of England and Wales to Parliament and Government, managing the Judiciary’s training and budgets, allocating work to the courts in England and Wales, and sitting on large and important cases. The appointment of the Lord/Lady Chief Justice is made ceremonially by the King, on the advice of the Prime Minister and the Lord Chancellor, following the recommendation of an independent selection panel convened by the Judicial Appointments Commission. This panel includes senior members of the Judiciary and representatives from outside the legal profession. The Lord/Lady Chief Justice is usually selected from among judges of the Supreme Court or Court of Appeal (but can also be selected from outside). There is no process of seniority, but the questions of length of service and experience have a pronounced influence on the choice, due to the position’s importance.


2.      President of the Supreme Court: The Supreme Court functions as the highest court of appeals for civil, criminal, and public law matters. It is headed by the President, whose appointment process is similar to the Lord/Lady Chief Justice. According to a legislative amendment adopted in 2013, the outgoing President may not serve as a member of the committee that selects their replacement. There is no explicit rule of seniority, but the question of length of experience has a pronounced influence on the choice. Since the Supreme Court’s establishment in 2009, the two presidents appointed (Hale and the current President Reed) had served previously as justices and Deputy Presidents of the Supreme Court. 


Does a seniority system apply according to law/practice?

No.


 

The United States

The Supreme Court of the United States


Appointment Process 

Article II, Section 2 of the United States Constitution stipulates that the Chief Justice of the Supreme Court is appointed by the President of the United States (the head of state) by and with the Advice and Consent of the Senate. After nomination of a candidate on the President’s behalf, the appointment process passes to the Senate Judiciary Committee, which weighs the candidacy and submits its position to the Senate. Within this, it has a practice of conducting a public hearing for the Chief Justice nominee. Alongside the hearing, additional appointment proceedings are held, such as collecting information on the candidate, a questionnaire on behalf of the Senate Committee to which the candidate responds in writing and more. The majority required for appointment is a regular majority of senators. The Chief Justice is appointed for life and there is no term limit. Therefore, appointment of a new Chief Justice can occur as the result of death, retirement, or resignation by the presiding Chief Justice (the current Chief Justice, Roberts, has served since 2005).


There are no defined criteria for selection of the Chief Justice, but usually political considerations are involved. As a result, over the years some of the candidates nominated by the President have been disqualified by the Senate for political reasons.


Does a seniority system apply according to law/practice?

No. There is no requirement that the Chief Supreme Court Justice be selected from among the presiding judges, nor are they required to have served as a Supreme Court justice during their judicial career. Of 17 chief justices, only five served as Supreme Court justices before becoming Chief Justice, and two were nominated as Chief Justice while serving as judges in other federal instances.




Note – For source references for this article, see the original Hebrew text.                                      


     

                   

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