Over on Amusing Nonsense, Sirius Bizinus has written what I feel is a balanced and reasoned article regarding the appointment of a successor to Justice Antonin Scalia on the US Supreme Court. His is one of the few that has neither expressed vindictive pleasure at the passing of Scalia, nor expressed outrage that Obama might have the opportunity to appoint a “liberal” to the position.
I find it fascinating that appointments to what should be non-political positions turn into party political circuses. Mind you, it does bring an element of entertainment from a distance that I find lacking in our own system here in NZ.
I don’t recall any judicial appointments here causing controversy, and I believe there are two reasons for this. The first is that by convention, judicial appointments are isolated from politics, and second, unlike in the US, the courts do not have the final say on matters constitutional.
Constitutionally, judicial appointments are made by the Governor-General on the recommendation of the Attorney-General. For those not familiar with the constitution of the Realm of New Zealand, think of the Governor-General as the de facto head of state. The Attorney-General is a member of the Cabinet and as such must be an elected member of Parliament. By convention, the roles of Prime Minister and Attorney-General are not held by the same person, although the constitution does not prohibit it.
By convention, the Attorney-General accepts advice from the Chief Justice and the Solicitor-General for appointments to the higher courts and from the Chief District Court Judge and the Secretary for Justice with regards to District Courts.
They in turn accept advice from the Judicial Appointments Liaison Office (JALO), which is required to consult widely. JALO has no legal or constitutional standing, and like so much of our system is based on continuously evolving conventions.
To avoid possible political influence, the convention is for the Attorney-General to mention judicial appointments to Cabinet, but for the appointment not to be discussed.
One difference between NZ and the US is that here there is a mandatory retirement age of 70 for judges.
Unlike the US, we don’t have a binding constitution. In fact our constitution is made up of multiple acts of Parliament, and ultimately parliament has supreme sovereignty. Therefore any bill passed into law cannot be unconstitutional.
It may seem strange to Americans that the majority of Kiwis prefer our existing constitutional arrangements and don’t want a binding constitution interpreted by the courts. While we perhaps don’t have the guarantees of freedom enshrined in the US constitution, in practice we have always had, and continue to enjoy greater levels of freedom than the good citizens of the USA do.