The Justice Initiative: Appointing the Federal Judges by Sortition

Collection of signatures for the Justice Initiative has been going on over the last month. By autumn 2019, the initiative must be signed by 100,000 citizens for it to qualify for the Swiss ballot. Although social networks are playing an increasingly important role in politics, the collectors of signatures on the street need convincing arguments.

The website is in French, German, Italian and Roman. I translated the German text using automatic translation and made some minor corrections. For those who can read German, here is the original text:

Bundesrichterinnen und Bundesrichter sollen Entscheide frei von Interessenkonflikten und politischen Einflüssen fällen können. Das ist heute nicht möglich.

Um von der Bundesversammlung als Bundesrichterin oder Bundesrichter gewählt zu werden, muss eine Person heute de facto einer politischen Partei angehören und über gute Beziehungen zu Entscheidungsträgern verfügen.

Dieses Beziehungsgeflecht besteht auch nach der Wahl in das Bundesgericht und kann die Entscheide der Richterinnen und Richter beeinflussen. Zudem kann mit der Drohung der Abwahl, Druck auf Richterinnen und Richter ausgeübt werden.

Deshalb sollen Juristinnen und Juristen alleine aufgrund ihrer Fähigkeiten – auch ohne Beziehungsnetz in die Politik und Verwaltung hinein – Bundesrichterin und Bundesrichter werden können. Und als solche sollten sie auch bei unbequemen Entscheiden keine Nachteile zu befürchten haben und nicht abgewählt werden können.

Diese Ziele werden mit der eidgenössischen Volksinitiative «Bestimmung der Bundesrichterinnen und Bundesrichter im Losverfahren» erreicht.

Richterkandidatinnen und -kandidaten dürfen einzig aufgrund ihrer fachlichen und persönlichen Qualifikation am Losverfahren teilnehmen. Das Losverfahren garantiert eine faire Besetzung des Bundesgerichts, ohne Rücksicht auf allfällige Parteibücher. Die im Losverfahren bestimmten Bundesrichterinnen und Bundesrichter, bleiben bis zur Pensionierung im Amt.

Translation:

Federal judges should be able to make decisions free from conflicts of interest and political influences. That is not possible today. To be elected by the Federal Assembly as a federal judge or a federal judge, a person today must de facto belong to a political party and have good relations with decision-makers. This network of relationships also exists after the election to the Federal Supreme Court and can influence the decisions of the judges. In addition, with the threat of dismissal, pressure can be exercised on judges. That is why lawyers should be able to become federal judges on their own merits – without a network of relationships in politics and administration. And as such, they should not have to worry about consequences of uncomfortable decisions and about being voted out. These goals are achieved with the federal popular initiative “Appointing the Federal Judges by Sortition”. Judge candidates may participate in the process solely on the basis of their professional and personal qualifications. The sortition system guarantees a fair composition of the Federal Court, regardless of any party membership. The federal judges, who are determined by lot, remain in office until retirement.

This might be a very important step for the use of sortition in present society.  And not limited to the appointment of judges. Let’s hope they get the 100,000 signatures in time.

12 Responses

  1. It’s quite unclear fromt this how sortition is arranged so as to ensure selection “solely on the basis of their professional and personal qualifications”.

    Is the proposal to simply have people register who meet certain minimum “professional and personal qualifications” and then choose at random from them. That may well be better than what the Swiss have now, but I can see people recoiling from it as the idea of merit only meets some minimum threshold standard.

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  2. > Is the proposal to simply have people register who meet certain minimum “professional and personal qualifications” and then choose at random from them.

    That’s how I understand this proposal. This, of course, means that you get a representative sample of (a self selected sub group of) the population of lawyers. But this means we let lawyers set the standards of justice in our society. This does not seem like a particularly promising reform.

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  3. Yoram:> this means we let lawyers set the standards of justice in our society

    This is conflating two distinct properties of sortition. The “standards of justice in our society” are (in theory) set by the legislature and sortition has a role in ensuring a legislature that is a portrait in miniature of society. But the role of sortition in appointing federal judges is to sanitise the appointment process from partisan politics (which dominates the appointment of US Supreme Court justices). The former uses the Invisible Hand potential of sortition and the latter the Blind Break — these are two entirely distinct properties and should not be conflated.

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  4. Yoram:> this means we let lawyers set the standards of justice in our society

    Lawyers make law, necessarily, in applying existing law. Obviously there are more and less adventurous ways of interpreting existing law, but necessarily any application of law which determines some matter that is not otherwise clear and obvious to all (this is what judges do) necessarily shapes the law’s content. It makes law. No way around it.

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  5. Nick:> Lawyers make law, necessarily, in applying existing law

    Yes that’s true, but as an individual judge cannot represent society “descriptively”, all we can do is ensure that the candidate with the requisite training (i.e. a lawyer) is appointed in an impartial manner, along with doing as much as possible to remove socio-economic barriers to entering the profession. Then the aggregate of supreme court justices will better describe society.

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  6. I had to look up the definitions given by Keith :
    The two leading theories on the political potential of sortition – the blind break and the invisible hand – have very little in common. The former deals with the indeterminate selection of individual persons for political office whereas the latter deals with the statistical sampling of a target population in order to establish a descriptively-representative microcosm. The blind break is a negative mechanism (the elimination of causal links) whereas the invisible hand is positive (the distribution of qualities in the target population (stochastically) determining the distribution of those qualities in the microcosm). (from https://www.psa.ac.uk/sites/default/files/conference/papers/2017/Blind%20Break%20and%20Invisible%20Hand_0.pdf )

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  7. How do I categorise the Jury in court cases, Invisible hand or blind break?
    A motivation for the twelve jury members (which can be anything between 6 and 12 twelve) was : https://www.insidescience.org/news/mathematics-jury-size One primary reason why today’s juries tend to have 12 people is that the Welsh king Morgan of Gla-Morgan, who established jury trials in 725 A.D., decided upon the number, linking the judge and jury to Jesus and his Twelve Apostles.
    Another source explaines why (in France):
    Why did the French Revolution establish the jury system in criminal cases on September 3, 1791?
    “Ce que caractérise Ia cour d’assises, c’est l’indépendance de cette jurisdiction. Elle offre la garantie que les jurés, en raison de Ia durée momentanée de leurs fonctions, n’abuseront pas de leur autorité.”
    Translation:
    “The independence of this form of justice characterises this juridical system. A guarantee that jurors, because of the short duration of their duties, will not abuse their authority, .”
    This is also a confirmation for our preference for ‘short duration’ Juries in our proposals with the consequence of high rotation (govern and be govern).

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  8. Hi Paul,

    Interesting question. The principal difference between a criminal and legislative jury is that the former is charged with establishing the facts of the matter, whereas the latter has to register its informed preference. Unanimity is ideal in the former case (primarily to reduce the risk of wrong convictions) whereas the legislative jury only has to reflect the preferences of the target population, so a simple majority will suffice (subject to a pre-specified margin of error). Statistical representation is essential for the latter (hence a size of several hundred), whereas the criminal jury simply needs to be independent from both the judicial apparatus and the defendant’s particular interests. It should be made as hard as possible for either party to select jurors so, unlike with the legislative jury, it’s more a case of the blind break (but the principle of trial by a jury of one’s peers does also suggest that the principle of descriptive representation also applies, as does the American principle of peremptory challenge).

    Updated full text of the paper (an appendix to my PhD thesis) at https://www.academia.edu/8295259/The_Blind_Break_The_Invisible_Hand_and_the_Wisdom_of_Crowds_The_Political_Potential_of_Sortition

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  9. Nicholas Gruen:> “Is the proposal to simply have people register who meet certain minimum “professional and personal qualifications” and then choose at random from them. That may well be better than what the Swiss have now, but I can see people recoiling from it as the idea of merit only meets some minimum threshold standard.”

    Van Reybrouck wrote (page 70): “To prevent tensions between ruling families, sortition was introduced as a way of appointing a new doge, but in order to ensure that only a competent person could become ruler, the procedure was combined with elections.”

    This is what motivatted my idea of a “BalLotery,” in which Ballots as well as Lots are put into a “BalLotery Box,” in some previously decided proportion.

    Van Reybrouck, continuing (pages 70–71): “The result was an unbelievably roundabout system that took that took place in ten phases over five days…. It went on like this …, the electoral commission repeatedly reducing by lot and then expanding by vote, using the aleatoric and electoral methods by turns.”

    The Venetian method “worked,” which is more than can be said of solutions that are “simple, plausible, and wrong” (Mencken). Could the Swiss be persuaded to “go Venetian” on that basis? It might be worth “running it up the flagpole”—for good-natured laughs, at worst.

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  10. Roger:> The Venetian method “worked,” which is more than can be said of solutions that are “simple, plausible, and wrong” (Mencken)

    Agreed

    Perhaps the greatest error in thinking about democratic authority is to believe that ideas about democracy and authority are simple and must lead to simple prescriptions . . . if you think there are simple prescriptions, then we cannot hope to understand one another. (Dahl, 1990, p. 73)

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  11. Not Found

    The requested URL /reform/us/model-constitution-us.html was not found on this server.

    Additionally, a 404 Not Found error was encountered while trying to use an ErrorDocument to handle the request

    the link is not working ?

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