Introducing a Parliamentary Confirmation Process for New Supreme Court Justices: Its Pros and Cons, and Lessons Learned from the US Experience

Abstract

Motivated in large part by separation of powers concerns, modernisation interests, and judicial independence principles, the Constitutional Reform Act 2005 (CRA) abolished the Appellate Committee of the House of Lords and established the United Kingdom’s free-standing Supreme Court. Eleven of twelve Appellate Committee members became justices of the new Court when it opened for business in October 2009, and a twelfth justice was named in March 2010.1 This article addresses whether a pre-appointment parliamentary confirmation process, including the possibility of parliamentary confirmation or scrutiny hearings, should be used to fill subsequent vacancies on the UK Supreme Court, where the CRA did not provide for a parliamentary role. My particular interest in this article is for what, if anything, the US Supreme Court confirmation experience can offer in considering the desirability and shape of a parliamentary confirmation process for UK Supreme Court justices.

The article begins by highlighting the CRA’s provision concerning Supreme Court appointments. It then summarises the discussion that has already occurred among leading commentators and in both Houses of Parliament regarding the possibility of a parliamentary confirmation process for Supreme Court justices. Thereafter, the article notes the recent experimentation with pre-appointment parliamentary scrutiny hearings for non-judicial public appointments. With this background in mind, the article explores the pros and cons of introducing a pre-appointment parliamentary confirmation process for Supreme Court justices (again, whether or not including parliamentary hearings) and concludes with lessons from the US Supreme Court confirmation process to consider in contemplating a parliamentary confirmation role.

Keywords: UK Supreme Court, Constitution Reform Act of 2005, Judicial Confirmation