Judging Judicial Appointment Procedures

Abstract

Over the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.

Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic concerns about the appointment of judges may require parties to go outside the national legal system itself.

This Article takes its inspiration from the recent decision of the European Court of Human Rights in Case of Guđmundur Andri Ástráđsson v. Iceland and applies certain principles and practices reflected in that case to the United States via the American Convention on Human Rights. In so doing, the analysis offers a useful and tangible means of addressing improprieties associated with the appointment of judges in the United States, thereby providing a new perspective on a very important problem.

Keywords: judicial selection, judicial appointments, European law, international law, comparative law, human rights, European Convention on Human Rights, American Convention on Human Rights, federal courts, Supreme Court, judges