Supreme Challenge
Soon the Supreme Court will be with us. Although this is not designed to be a United States type Supreme Court, and the official line is that the change of name should in no way affect its powers, this is most unlikely. Calling something a Supreme Court sets the tone and an agenda. Lord Neuberger, always a most entertaining speaker, recently observed in connection with the change to a Supreme Court that “The only rule which my experience suggests is infallibly reliable is the law of unintended consequences.”. This will almost certainly be the position here. Given its name, and given the increasingly judgemental and political decisions which the courts can end up answering as a result of both the Human Rights Act and European legislation, the tone adopted and crucially the public perception of the court is likely to radically differ from the old House of Lords. Call it a Supreme Court and that is what people will expect it to be.
This will have considerable consequences as regards the judges and their appointment. In a recent article in the Times David Pannick QC argued that if Barrack Obama were not elected President of the United States this would have a serious effect on constitutional decisions there. This is because of the presidential power of appointing new judges, Pannick's argument being that McCain if President would appoint conservative reactionary judges who would be likely to turn back the clock by giving a clear Conservative majority on the court. (Although noting that in the past not every appointment has turned out to behave judicially in the way one might have expected, the argument was that by and large that is what happens in most cases). Of course the inevitable concomitant of this is that with Obama as president liberal judges are likely to be appointed thus swinging interpretation of the constitution in the other direction. What is and is not desirable depends upon your perspective.
Of course in the United States there are also checks on appointment. Under the constitution the Senate has to give advice and consent to the appointment and so not every proposed appointee gets the job. There is considerable scope for questioning prospective judges about all sorts of policy issues. Whilst this will not determine how a judge will decide a particular case, it can give you a pretty good idea.
This is not to suggest that judges are making their decisions purely based on their political perspective. However in a truly " Are reme" court, your underlying view of certain issues will affect how core values or constitutional principles ought to be applied. They are most unlikely to be dry legal issues. This is the more so as decisions descend more into the policy arena and less into dry technical statutory interpretation. Put bluntly if you can decide whether laws should stand as opposed to what they mean, the scope for your own values affecting the decision is the greater.
Since in one form or another judges will be making quasi political decisions, and since those decisions will in effect sometimes overturn the approach of a democratically elected government, it is inconceivable that some form of transparency in the appointment process will not be required. Sooner or later some form of process whereby proposed Supreme Court appointees are questioned seems inevitable. The only question is when and in what form this will occur.