Okazaki: Appointment and Sortition

Seiki Okazaki, Professor of political theory and comparative politics at Kyushu University, Japan, has written to share a summary of his new article, “Appointment and Sortition,” pubilshed in Law and Philosophy journal, No. 7, pp. 31–56.

I have recently published an article titled “Appointment and Sortition” in Japanese. It is one of the five contributions to Law and Philosophy, No. 7 (June 2021), which discuss ‘Just Lotteries’. Here I will summarize the arguments of my article.

As is well known, sortition has been generally discussed within the framework of ‘election and/or sortition.’ While I agree that the framework is still relevant, I am concerned that it limits the potential of sortition: Sortition tends to be applied mainly to the legislature and is mainly evaluated in terms of its contribution to democracy. If we liberate the concept of sortition from the framework, we can recognize two potentialities of sortition. First, the field of application is not limited to legislature: Sortition can be applied to administration and to the judiciary. Second, we will see that it has a liberal potential as well as a democratic potential: Sortition can contribute not only to citizen participation in power, but also to the restriction of political power (Oliver Dowlen’s book is important in this respect).

I propose to select personnel using sortition to some high positions of the judicial and administrative branches in the context of Japanese politics. Recently, the Japanese government has appointed certain high officials in an arbitrary and partisan way, such as the judges of the Supreme Court and the Director-General of the Cabinet Legislation Bureau. To aggravate matters, the government has justified such an appointment by insisting that it exercises democratic control over non-democratic bureaucracies.

In this political context, I argue that it is imperative to use sortition to guarantee the independence of some high officials. I propose the following mixed sortition system in order to select the judges of the Supreme Court.

  1. All judges have passed the judicial examination (examination).
  2. Members of the nominating committee for the judges of the Supreme Court are randomly allotted from all judges once in few years (indirect sortition).
  3. The members recommend some candidates and the committee makes a list (recommendation).
  4. The judge of the Supreme Court is randomly allotted from the list when a vacancy is to be filled (direct sortition).

A similar system is proposed for appointing the councilors of the Cabinet Legislation Bureau. Based on these illustrations, I have suggested the possibility of ‘allotted bureaucracy.’

In sum, I argue that sortition can have a liberal function in judicial and administrative branches as well as a democratic function in the legislative branch.

7 Responses

  1. A very sensible set of proposals! I would contend that the ‘democratic’ and ‘liberal’ purposes of sortition overlap, or are complementary – that the liberal use of sortition to separate powers is a necessary means of preventing the formation of elite power-maintenance systems that would stifle the general democratic interest, insofar as there is such a thing. (I’m sure the present Japanese government, like the present British government, would have a different opinion!)

    Liked by 1 person

  2. Thank you for your comments. I agree with you: I have pointed out the complementary relationship in my article. Thank you.

    Liked by 1 person

  3. I think it best that civic juries choose judges, including supreme courts, so that judges can be chosen in an informed way by representative cross-sections of the public, independently from politicians, political parties and campaign donors, with all those wishing to apply for a judicial office being considered by the jury on a fair and level playing field.

    If judges have to pass a judicial exam then only those who have passed it would be able to apply to the jury.

    I think a random sample of judges deciding on a list of nominees from which judges are then chosen by lottery is very much contrary to rule by the people and the political equality of citizens. Selection by a jury that is a portrait of the people is far more in accord with those things

    If the judiciary, other than the Supreme Court, has been appointed on a largely partisan basis, or appointed by politicians that are politically aligned with corporations and the billionaire class, as is the case in the US, that compounds the problem of having a nominating committee randomly sampled from judges.

    However, a random sample of experts to choose which among their colleagues to nominate for a position seems to me like it could have something good to offer in some other context.

    Seiki, I assume you have an answer as to whether judges on the nominating committee should be able to nominate themselves or not. If not that could deter judges hoping to serve on the Supreme Court from serving on the committee. If yes, then there are conflicts of interest.

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  4. Thank you for your comments. I cited your “Let Juries Choose Public Officials” in my article.

    I am a supporter of participatory and deliberative democracy. Yet, I believe that professional judges are more appropriate than citizens in this case. Since ordinary citizens have no (or very few) information on judges, it is highly difficult for them to nominate judges responsibly.

    Instead, I proposed to establish a citizen assembly for the national review of the Supreme Court. Although there has been a system of national review, the system does not function due to the information costs of citizens. If a randomly-selected citizen assembly judges the appropriateness of each judge and provides information to citizens, the national review will function as an instrument of democracy.

    I did not answer the question in my article: “whether judges on the nominating committee should be able to nominate themselves or not.” But, my answer is No. They have a chance to be nominated in the next nominating committees, which will consist of other judges.

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  5. To me that sounds like a good answer about whether judges on the nominating committee are able to nominate themselves. If there is a new nominating committee each year or two that can add more judges to the list then …

    Citizen assembly review of judges sounds good. I know nothing about national review of judges in Japan other than what you mention.

    Ways can be found for citizen assemblies to choose judges in an informed way.

    My understanding is that the evidence does not show that popularly elected judges in the U.S. are less competent than the ones chosen by state governors, including where judicial nominating commissions are used to provide the governor with a list of qualified candidates, allegedly based on merit. Citizen assemblies would be able to choose judges in a far more informed and level playing field way than popular election.

    Judges bring public policy considerations to their decisions and every new interpretation of the constitution is a kind of soft constitutional amendment. I think it should be up to the people, through juries, which kind of public policy outlook judges have. Whether judges are, thinking of lawyers and judges in the US, more like Ralph Nader or RBG or Scalia or Garland and so on in terms of public policy outlook.

    But I take it you already know my thoughts on these things.

    Thanks for citing me!

    The first article in which I propose juries choose a wide range of public officials including juries is from 1997, but the one you mention is the most recent.

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  6. I believe that we have to distinguish several types of sortition. One is for a decision making and the other is for a selection of officials (Dr. Hirohide Takikawa, the professor of the philosophy of law at the University of Tokyo, proposed to distinguish them in his article). The latter can be subdivided into positive selection (to adopt officials) and negative (to dismiss officials) ones.

    In the cases of a sortition for a decision making and for a negative selection, randomly-selected citizens can judge responsibly. However, I believe that it is highly difficult to pick out some judges from several thousands of judges. In contrast, judges can pick out them easily because they share informal reputation about their colleagues: ‘He/she is said to have comprehensive knowledge and have made right decisions.”

    Thank you for your comments.

    Liked by 1 person

  7. Seiki:> I believe that it is highly difficult [for a civic jury or citizens’ assembly] to pick out some judges from several thousands of judges. In contrast, judges can pick out them easily because they share informal reputation about their colleagues

    If a large number of candidates apply for a judicial office that is chosen by a civic jury, there are various ways in which they can be winnowed down to a small number for the jury to choose from.

    For example, in about 34 of the US states, judicial nominating commissions recommend a short list of candidates when a state judicial office comes open. A selection jury could choose which of these candidates the judicial office would go to.

    I am not a fan of using a blue ribbon nominating commission for providing such a short list, and do not think the existing judicial nominating commissions are democratically chosen, but it is an option, and is a system already in place in about 34 of the states. (As I believe you know, currently the state governor or the state legislature chooses which of the candidates on the list the judicial office goes to. I of course am opposed to that.)

    In the article of mine you mention I suggest another way to winnow down a large number of candidates to one winner.

    Another possibility is suggested by the American Bar Association (ABA) practice of providing what they claim to be politically neutral peer-review evaluations of nominees to the federal courts. Any applicants to a selection jury deemed “not qualified” by the ABA peer-review process could be eliminated from the pool of candidates. (The ABA committee regarding judicial nominees gives out three ratings for judicial nominees: well qualified, qualified and not qualified. As well as eliminating those who are deemed not qualified by the committee, all those not considered well-qualified by at least some of the committee could also be eliminated from the pool of candidates.)

    The nominating committee in your proposal is a fourth way a short list could be provided for a civic jury to choose from.

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