Advice and Consent vs. Silence and Dissent: The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointments

The Senate’s role in judicial appointments has come under increasingly withering criticism for its uninformative and “spectacle”-like nature. At the same time, Britain has established two new judicial appointments processes—to accompany its new Supreme Court and existing lower courts—in which Parliament plays no part. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts (albeit created 220 years apart*). The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early American state constitutions, Articles of Confederation, and U.S. Constitution, noting how the Senate’s role has evolved since the time of the Constitution’s ratification. (Part I) The Article then charts the principal ideas and concerns motivating the U.K. Constitutional Reform Act’s (CRA) overhaul of Britain’s judicial appointment systems and rejection of a parliamentary role. The Article also notes the Brown Administration’s post-CRA exploration of the possibility of parliamentary involvement in judicial (and other) appointments. (Part II)Thereafter, the Article compares and contrasts the reasons for inclusion and exclusion of the legislature in U.S. and U.K. judicial appointments. (Part III) * [The U.S. Supreme Court was established by the U.S. Constitution in 1787 and began operating in 1789. The U.K. Supreme Court was established by the Constitutional Reform Act 2005 and began operating in 2009.]