The mid-term elections are in full swing here in the US (I have been here for a week attending a family wedding). In the UK, our interest in American politics is mostly in the elections for Senate and the House of Representatives – ‘Will the Democrats make the necessary gains to control the executive?’ However, the many signs up in gardens proclaim endorsement for candidates for state and county elections and many more for the election of judges to the Ohio Supreme Court, the District Court of Appeals, the County Court of Common Pleas General Division and Juvenile Division. This includes the nomination of Marcia Fudge. The prospect of Judge Fudge does seem rather amusing; but remember we did have Judge Judge in charge of our judiciary for a time.

After the nomination of Brett Kavanaugh to the Federal Supreme Court, who was accused of multiple accounts of sexual misconduct, there are more discussions in the US press about the nomination for other judicial appointments which are subject to political control. The political leanings of all federal judges are scrutinised and discussed to see if the courts can be influenced in their decision making in some way.  The constitutional power of the President to nominate either a conservative or a liberal leaning judge has almost become the most important reason for people voting the way they do in Presidential elections.

From a UK point of view, this seems a rather unsatisfactory way to conduct the choice of the persons who are to preside over the system of justice. However, as this system is enshrined in a written constitution it is not that easy to change. From a country which set out to enshrine in its constitution a separation of powers between the executive and the judiciary, the result seems to drive a coach and horses through that very principle.

I met a US judge during my current visit to the US as my nephew Mark, a lawyer in Washington, was married by a highly respected federal district judge. In fact, I have actually met a lot whilst I was President of the Law Society and they have all struck me as people of intellect and integrity. However, much like a lot of the political system over here, the nomination process has become toxic and it is hard to see a way back from this place of polarisation.

We have Judicial Appointment Commission in the UK and judicial appointments are still confirmed by the Lord Chancellor. When the Ministry of Justice became just another ministry, not always headed by a judge, this punctured the separation of powers between executive and judicial systems although, only a few constitutional lawyers spoke up at the time. Additionally problematic is the fact our judiciary is still predominantly white male. This is slowly beginning to change and just a few weeks ago, in a historic step forward, a case in our Supreme Court was determined by a majority female bench.

I have been reading a book entitled ‘Suicide of the West’ by Jonah Goldberg, a well-known political commentator here in the US. The premise is that the democratic systems in the West are on their ‘way out’, but that we can stop the demise of them. We can stop taking our economic success for granted and really work out ways to ensure its continued existence, or we can continue to retreat into tribalism and risk our very existence as a prosperous, civilised society. This is a message for both the US and UK as we leave the European Union. Let’s hope we can find a way forward in our relationship with Europe that does not damage our reputation too much. With the correct approach we can create a harmonious future based on common sense and a collaborative narrative of who we are and where we are going.