Judicial Independence

When is arbitrary power superior to formally democratic mechanisms? When naming judges, perhaps. The judges of Spain's highest court serve limited terms. They are chosen by the lower and upper houses of parliament, the executive, and the judiciary's own administrative body. In the press, judges' names are often mentioned together with the party that put his or her name forward. They are known to belong to competing judges' associations, the largest of which are routinely referred to as conservative and progressive. Couple this court challenges to legislation launched by political parties themselves, and the judiciary soon resembles a chess game. Thus, the more prominent judicial decisions become, the greater the public's perception that the judiciary is shot through with party-political loyalties, for a prominent judge is (thanks to the press) a judge whose political affinities are known. A democratic mechanism--parliamentary election of judges--ultimately undercuts the very legitimacy which it was designed, in the 1970s, to restore.

What happens when judges are named by the executive, as in some Westminster democracies? In a word: scrutiny. Where power is openly concentrated in one individual's hands, and that individual happens to be the head of government, the likelihood that an abuse of power will reflect on public perception of his or her character is very high. The trade-off in such a system is the prevalence of patronage appointments to lower benches; but appointments to the court of last resort need to stainless for the sake of those appointing as much as those appointed.