Tuesday, January 24, 2006

Yale Law Professors question the selection process for US Supreme Court justices

They came up with an interesting proposal that the United States Senators can ask the Supreme Court nominees about have they would have voted in cases that the Supreme Court has already decided. They demonstrate that such questions neither compromise the independence of the judiciary nor politicise the rule of law, but instead serve important structural values since they can help generate the democratic legitimacy necessary for courts to exercise the formidable power of judicial review. The article may be reached at http://www.thepocketpart.org

Now Chief Justice John Roberts already in 1981 objected such a proposal by submitting that the “proposition that the only way Senators can ascertain a nominee’s views is through questions on specific cases should be rejected. The suggestion that a simple understanding that no promise is intended when a nominee answers a specific question will completely remove the disqualification problem is absurd. The appearance of impropriety remains.”

One may add that such a solution would be appropriate also when choosing judges of Slovene Supreme and Constitutional Courts even tough the selection processes in the United States and in Slovenia vary to some aspect.

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