Selecting the Very Best: The Selection of High-Level Judges in the United States, Europe and Asia

This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is vital for the existence of democratic societies.

In sum, there is no “perfect” model for selecting judges for the highest courts of a country. The results that will be obtained by any particular model are highly dependent on the political and social context of a country—or state. A method that works well in a particular country might not produce desirable results elsewhere, which is why an analysis of the local context is always an essential starting point. That said, the analyses of the strengths and weaknesses of the selection methods adopted in the United States and in various European and Asian countries may be instructive in assessing what might work for any country considering efforts to enhance the effectiveness of the operation of the rule of law in that country.