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The U.S. Supreme Court is highly politicized. It doesn’t have to be that way.

The U.S. Supreme Court is highly politicized. It doesn’t have to be that way.

Anthony Kennedy, left, takes the constitutional oath from Chief Justice William Rehnquist in 1988. (Doug Mills/AP)

Whenever a seat opens up on the U.S. Supreme Court, the political battle over the next justice is fierce. And to some people, that’s a huge problem.

Critics have called the court’s confirmation process “broken” and have complained of increasing “politicization” of an institution that is supposed to stand apart from political theater — in theory. In their eyes, the political views of court nominees are now more important in their selection than their qualifications or legal judgments.

The death of Justice Antonin Scalia in February 2016 sparked a year-long standoff between Republicans and Democrats over his seat, which eventually went to a conservative justice with President Trump’s election. Justice Anthony Kennedy’s now-looming departure will give Trump another opportunity to form a more conservative majority on the court as early as this fall.

“I am not happy about the intrusion of politics into the judicial appointment process,” even the late Justice and conservative icon Scalia acknowledged in 2004.

But it doesn’t have to be that way. From independent selection committees to cross-party nominations of candidates, lawmakers in parts of Europe have found ways over the past few decades to give judges more independence rather than aligning them with party ideologies.

The lessons of Adolf Hitler’s rise to power in Germany and his takeover of the judiciary led to sweeping changes in Europe following World War II, and are still reflected in changes made over the past decade. “In Britain, the judiciary very much values its independence,” said Felicity Matthews, a governance professor at the University of Sheffield in South Yorkshire, England. “It would be considered a dangerous infringement if Supreme Court justices were asked about their personal political views in nomination hearings.”

That sentiment was echoed by experts across Western Europe. In Germany, a committee of 12 members representing all parties in Parliament selects a nominee behind closed doors. The parties take turns in proposing candidates, a mechanism that ensures even smaller parties with as little as 5 percent of popular support can propose a nominee every few years, usually without facing resistance from the government.

A two-thirds majority of Parliament is needed to confirm a nominee, which requires broad consensus between parties and usually ends up empowering moderate candidates. Given Germany’s multiparty system, no party in the country’s modern history has ever had a two-thirds majority in Parliament and, thus, the final say over a Supreme Court nomination.

“The nomination process in Germany certainly has no negative impact on the quality of the work of our Supreme Court,” said Christian Pestalozza, a law professor at the Free University of Berlin.

Many European nations have age or term limits for their Supreme Court justices, unlike the United States’ lifetime appointments that turn nominations into a kind of actuarial battle. German judges are replaced after 12-year tenures or when they turn 68, whichever comes first. Their Swiss counterparts must resign at the same age and need to be reelected every six years. Similar rules are in place in Norway, Italy and the United Kingdom.

Whereas many continental supreme courts were radically reformed after World War II, it took the United Kingdom until 2009 to establish its own. Its tasks were previously managed by the House of Lords, the upper chamber of Parliament. Today, the country has one of the world’s most independent higher courts. Nominees are vetted and selected by an independent committee whose members are often unaware of the candidates’ political alignments. Similar committees are in place elsewhere in Europe, such as in Norway and Denmark.

“The overriding principle is merit,” said Matthews, referring to the British process. “This, however, also brings its own problems. Many judges are white and male because they are expected to have at least 20 to 40 years of high-level previous experience.” Many of the judges are in their 60s when they are appointed.

“So far, only one woman has ever been named Supreme Court justice,” King’s College law lecturer James Lee said. Hence, Britain’s Supreme Court has frequently been criticized for what some perceived as overly conservative decisions — but for far different reasons than in the United States.

In Italy, criticism of the Supreme Court’s composition would hit three different institutions. Parliament, other higher courts and the president can each appoint one-third of the 15 Supreme Court judges. Spanish Supreme Court judges are nominated by the lower and upper houses of parliament, the government and General Council of the Judiciary, which oversees all judges in the country. Nominees cannot be officially aligned with a political party.

France, meanwhile, has chosen a vastly different approach: skipping the idea of a Supreme Court altogether. The country’s Constitutional Council comes closest to such a court, but it has far fewer powers. It consists of nine permanent members, of which one-third are replaced every three years by the executive branch.

“It sounds like a highly politicized court, but it is not viewed as such in France,” French legal expert Julien Sterck said. The council usually focuses on clarifying narrow procedural questions rather than overturning or confirming the constitutionality of laws themselves. While it has had the power to review laws since 2010, it rarely does so and only when asked to rule by another French court.

Many French people would generally view the U.S. Supreme Court as far too powerful given that voters have no direct sway over its composition, Sterck said.

One recent attempt to diminish the judiciary set off alarm bells in Europe. Poland went through a constitutional crisis in 2015 after one party first tried to replace Supreme Court judges whose terms had not yet ended and another party then implemented a two-thirds majority rule on the Supreme Court, making it harder for the judges to pass any rulings. The changes were widely criticized by the European Union and Poland’s neighbors. Despite widespread domestic protests, the country’s ruling Law and Justice party has since continued to weaken other institutions, such as the national public broadcaster. As of April, Supreme Court judges are now forced to retire earlier than they used to, with their successors being named by a body which critics fear is increasingly biased.

To experts across Europe, the rapid disintegration of Poland’s Supreme Court served as a reminder of how quickly the rule of law can deteriorate when checks and balances begin to weaken. Now, all eyes are on the United States once again.

This post was first published in February 2017. It was updated in June 2018.

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