The U.S. Supreme Court is riven by political division and the nomination process riddled by partisan battles, unlike Europe’s highest courts, argues David Orentlicher.
By David Orentlicher
United States President Donald Trump has nominated Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. His choice solidifies a conservative majority on the nation’s nine-member highest court.
Trump’s conservative bench could overrule Roe v. Wade, eliminating women’s constitutional right to abortion. It also could condone political gerrymandering and put LGBTQ people at further risk for discrimination by employers, landlords and business owners.
A politically polarizing court is not inevitable. In some European countries, the judicial appointment process is actually designed to ensure the court’s ideological balance, and justices work together to render consensus-based decisions.
Europe’s Centrist Constitutional Courts
I am a scholar of high courts worldwide, which are typically called “constitutional courts.”
Europe’s constitutional courts differ from country to country, but they have some important similarities. They generally decide only constitutional questions posed by the legislature or by lower courts, rather than cases brought by individuals.
Oral arguments are rare, and the justices deliberate in private, considering written arguments. The courts generally have more members than the U.S. Supreme Court – 12 to 20 judges – but they also often operate in smaller panels.
Judicial appointments in such systems rarely provoke the kind of partisan confirmation battle that is likely to play out now in Washington.
That’s because many European countries ensure that all sides of the political spectrum have a say in choosing constitutional court judges.
In Germany, for example, the legislature conducts the appointment process in a bipartisan fashion. The political parties negotiate over the nominees, identifying candidates who are acceptable to both the left and right.
Because each justice must be approved by a two-thirds vote, all candidates need to appeal to lawmakers from across the political spectrum.