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In countries like the USA many people are frustrated with the control of the legislative majority or head of state over Justice appointments and the Law enforcement agencies (accusing the law enforcement of bias etc.), while in countries like Israel many people are frustrated with the inability of the nation to influence the ethics, morals and common sense according to which the judges are judging, as well as concern/accusations that the law enforcement agencies are becoming corrupt and biased due to the lack of civil oversight.

The argument not to allow judges to be elected by heads of state or regular parliaments, is basically that it may become too politicized and contaminated with other personal political goals, selfish interests and deals between parties. (Like people who fear that some future American president may become some sort of Putinistic leader, who will get his police, his AG and his judges to persecute his opponents (or like the people who believe that this is the situation today)).

Would the best solution be to establish a separate parliament, of delegates elected directly by the people (maybe about 30 seats), which is not related to the executive or legislative branches of government, which would elect/approve new judges, approve constitutional laws and also oversee the police, investigation and prosecution agencies?

According to my understanding, this would ensure that the ethics and values of the sitting justices would reflect the value systems of all groups in the nation, as well as law enforcement integrity. While not being impacted by short-sighted coalition-opposition (pro/anti government) politics.

An argument in favor of this proposal, may be, that usually when people are appointed to positions that require them to be apolitical, like judges, diplomats and ceremonial heads of state, they adjust (or try to adjust) to that standard. Executive heads of state and members of legislative parliaments are not asked to be apolitical.

Can you see any possible problems with such a system?

Note: In this question, when I write Politics, I'm refering to personal politics, i.e. pro/anti a certain politician. Moral/ethical controversies are totaly legitimate issues when considering/debating the appointment of judges etc.

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    How would this "separate parliament" be selected if not by the "political majority or head of state"?
    – Cadence
    Jun 14 at 9:26
  • @Cadence, directly by the people. The argument not to allow judges to be elected by heads of state or regular parliaments, is basically that it becomes too politicized and contaminated with other political goals, interests and deals between parties.
    – Jacob3
    Jun 14 at 11:03
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    So rather than judges and whatnot being selected by people elected to regular parliament, which is full of political parties, they would be selected by people elected in a different parliament, which is somehow free of partisan politics? Seems like there would be a strong incentive for political parties to get involved in elections for the other parliament too.
    – Giter
    Jun 14 at 15:32
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    "In countries like the USA many people are frustrated with the control of the legislative majority or head of state over Justice appointments and the Law enforcement agencies (accusing the law enforcement of bias etc.)" Not convinced that this premise is sound, or that if people do make those complaints that the grievances reflect reality.
    – ohwilleke
    Jun 14 at 21:56
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    @Jacob3 I cannot directly answer your question, but like your idea because I believe that more power through more direct voting of certain positions should be in people's hands and through todays technology such votings could be very easily organized and results very easily protected (I'm thinking blockchain implementation here), voting for a single party and thus selecting everything good and bad with that party for 4 years is bad in my opinion Jun 16 at 8:40

4 Answers 4

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Such a parliament would be filled by the same politicial parties as the regular parliament in similar proportions. If you as a voter believe that a certain political party should be in the regular parliament and ideally be in control of the government then you would vote for that very same party in your judicial parliament.

As such it would be just as politicized and contaminated with other political goals as the regular parliament. This extra parliament would not solve the problems of political control of the judislative in any meaningful way.

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  • I see now that I didn't explain my question good enough, so I edited the question. I wasn't refering to legitimate political and ethical agendas, like pro/anti abortion, pro/anti immigration etc., on such matters we do want the justice system to reflect the diverese spectrum of opinions in the nation. I was refering to pro/anti Trump, pro/anti Biden etc.
    – Jacob3
    Jun 14 at 15:25
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    @Jacob3 your proposal sounds somewhat like the States General electing the senate in the Netherlands. They are elected provincial representatives (and just an electoral college for those voters who live outside the provinces) who get to elect senators. Though there are some local parties, most candidates are representatives of the main political parties.
    – JJJ
    Jun 14 at 15:44
  • @JJJ, Interesting. Would you know if this leads to less political contention and polarization?
    – Jacob3
    Jun 14 at 15:52
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    @Jacob3 in this particular case a criticism is that the Dutch senate is meant to be a check on the parliament, making sure that laws are feasible and constitutional, etc. In practice, a law won't pass if there's not enough political support in both chambers. I think it's hard to answer your question because there are many factors at play here. Two chambers versus one, direct election (e.g. like senators in the US) vs indirect (like the Dutch system), one party vs multi-party systems. So it's hard to compare individual differences.
    – JJJ
    Jun 14 at 16:09
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    @Jacob3 You want the special parliament selecting the judges to be selected by voters based on "legitimate political and ethical agendas". But we want that for the regular legislature too. There's nothing in your proposal that would stop the candidates for special parliament campaigning on "I'm going to appoint justice officials who will finally lock up Trump/Biden", and thus being taken over by partisan politics. That's actually what happened with the US congress; the founders didn't want parties, but parties are so much stronger than individuals that they inevitably form.
    – Ben
    Jun 15 at 5:54
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Directly elected and decentralized law enforcement

The United States does something somewhat similar at the state and local level.

Many states directly elect the chief prosecutor at the state level (the Attorney-General), the chief prosecutor in each local trial court (the District Attorney), the chief law enforcement officer in each county (the Sheriff) of which there are typically several dozen in each state (with jurisdiction that is typically present only outside incorporated municipalities), and sometimes even the chief medical examiner charged with classifying cases as homicides (the coroner) in each county.

Every U.S. state also separately elects a Governor from its legislators, and that Governor typically appoints the chief of the state police.

In incorporated municipalities, the chief of police is typically appointed by the Mayor, who is either directly elected or is the leader of the city council, sometimes with input from the local city council.

Even a town of a few hundred people will typically have its own independently appointed police choice.

On Indian Reservations, law enforcement officers, misdemeanor prosecutors, and tribal court justices are appointed by the tribal government, and felony criminal justice enforcement is handled by the federal government in the federal courts.

State and local legislators, respectively, fund the personnel and facilities and resources of the criminal justice process in most cases, but don't administer the the process when there is an elected or politically appointed official who does so.

Also, in many states, especially in the Western U.S., some or all of the relevant officials can be recalled by voters before their terms end in a recall election called with a recall petition.

The Importance Of State and Local Criminal Justice Enforcement

The importance of these state and local level law enforcement and prosecution appointment should not be underestimated, because about 98% of criminal cases in the United States are handled at the state and local level, rather than at the federal level (under state and local laws, not federal laws). Moreover, probably 95% or more of law enforcement and criminal prosecution activity even at the state and local level is handled by local governments, rather than by the state government.

To be clear, state criminal justice enforcement officials don't report to federal criminal justice enforcement officials (although federal officials can take over their cases), and local elected criminal justice officials don't report to state criminal justice officials.

Elected And Randomly Selected Judicial Decision-Makers

Furthermore, in many U.S. states, a large share of judges who rule on criminal cases, both at the trial court level and the appellate court level, are elected. Where they are not elected, moreover, they are usually political appointees.

Two states (Texas and Oklahoma) also have separate appellate courts for criminal cases as opposed to civil cases, allowing those judges to be selected based upon their criminal justice jurisprudence alone.

In the U.S., unlike most developed countries, being a judge is generally a second career of an experienced lawyer and one does not work their way up the judicial hierarchy from lower courts to higher courts, although sometimes lower court judges are appointed to higher courts.

And, the lion's share of criminal cases presenting a possibility of incarceration are usually resolved by juries drawn at random from the general population in the place where the crime is being prosecuted.

Conclusion

It isn't a separate parliament, but a very large share of the key players are directly elected, compared to any other country, and law enforcement and criminal justice administration is highly decoupled from both federal and state politics. I am not aware of any country in the world that has a more decentralized criminal justice system than the United States, or that has more directly elected criminal justice officials.

The U.S. also make heavier use of lay jurors in criminal trials than in any other country. It isn't uncommon for even serious traffic offenses, like driving under the influence, to be resolved in jury trials in the U.S.

The issue in the U.S. is really the concern that it may be too decentralized.

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    To extend this thought: many locales also have laws permitting recall elections, which give voters the ability to hold these elected positions immediately accountable should they go too far off the rails.
    – bta
    Jun 14 at 21:58
  • @bta Absolutely true (except, of course, that "immediate" really means "in a time span of several months").
    – ohwilleke
    Jun 14 at 21:59
  • OP proposed this system with the hope that in such a system 'the ethics and values of the sitting justices would reflect the value systems of all groups in the nation, as well as law enforcement integrity'. Can you give some judgement whether this works out compared to other Western countries or whether the effect is more a politized judislative as I claimed in my answer?
    – quarague
    Jun 15 at 6:08
  • Additionally in 48 states, there is the office of sheriff, which in 47 states is the highest law enforcement officer in the county (except Virginia, where a municipal police chief has equal authority. In 46 states, the position of sheriff is elected (Rhode Island and Hawaii being the exceptions). As for the two states without sheriffs (Alaska and Connecticut) are because Alaska does not have any county divisions while Connecticut has no county level government. Sheriffs typically are the state counterpart to the U.S. Marshals, which are appointed by POTUS.
    – hszmv
    Jun 15 at 12:13
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    @quarague On one hand, the highly fractured and local system of law enforcement in the U.S. makes corrupt capture of the system much harder than in countries with more centralized law enforcement like Mexico and Italy. And, it makes law enforcement for better or worse, more responsive to local public opinion. On the other hand it means that the lowest quality units are worse, that local prejudices can be exacerbated, that bad but popular officials aren't accountable to the law, and the average law enforcement management quality is lower. Elected judges are also a very bad practice.
    – ohwilleke
    Jun 15 at 16:40
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In England and Wales, there are around 40 directly elected Police and Crime Commissioners who are responsible for policing in most areas. This system was probably inspired by similar American systems. However, unlike your idea of a "parliament" each police force has its own commissioner, who is solely responsible for that force. They also have no involvement with the judiciary. At present, all the commissioners in England come from one of the two main parties, although there have been independent commissioners in the past. Their background is often quite different from that of the party's members of parliament, with many having previously been police officers.

In Japan, the Justices of the Supreme Court are appointed by the Cabinet, but they are also subject to a retention election. The election is held at the same time as the first general election after the Justice's appointment. If a majority of ballots cast in the election are opposed to the Justice, then they are dismissed. However, no Justice has ever actually been dismissed in this way.

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Technically, half of the judges of the German Bundesverfassungsgericht are elected by a kind of “second parliament”, the Bundesrat. The Bundesrat is a chamber consisting of representatives of the federal states making up Germany.

The other half are elected by the parliament, the Bundestag.

From my observations what makes the elections quite uncontroversial are two different conditions:

  1. a candidate has to be elected with a 2/3 majority. This forces all large factions to somehow cooperate and makes sure they do not damage the other sides’ candidates for political gains, and
  2. an incumbent cannot be re-elected after their term of 12 years (or reaching an age of 68).

The combination of (1) and (2) makes sure, that there are ongoing elections in predictable intervals, which means the chambers and factions are forced to talk to each other to bring their candidates through the election process.

Elections of Bundesverfassungsrichter are a quiet affair regarding German media. The results are reported of course, but we do not have this extended public voicing of opinions and fighting that has accompanied the US Supreme Court in the last years. And given that the largest opposition faction most likely elected the judges as well, their sentences are well respected most of the time throughout the political spectrum.

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