I argue that judges should be appointed on the basis of merit in a blind-test of legal skills. I define a blind-test as an evaluation where the examiner and examinee(s) know absolutely nothing about each other personally, and this is achieved by the examinee not being told who the examiners are and vice versa, and the examinee not submitting any personal details in the evaluation. For the purposes of this essay, I include all judges from the various levels and types of courts, and argue mostly in context of modern democracies.
The process we use to appoint judges is crucial as it decides how independent the judiciary is form the other branches of government, and how well it can contribute a democracy's system of check's and balances. It is also vital as judges set precedents and interpret the law, which we as a country then follow if and until it is overruled. Legal and constitutional interpretations with a strong political bias pollute the principles of democratic freedom. Ideally, judges should not be appointed by biased people, and they themselves must not be biased; however, we know that it is objectively impossible for humans to function with an absolute lack of bias. We therefore look at the next best alternative - blind tests.
We must use multi-layered blind tests to appoint judges. Such blind-tests would comprise of a test of the applicant's knowledge of existing law and precedents as well as their ability to objectively interpret some laws; simulations to see how an applicant responds when presented with complex circumstances judges might face, such as political or public pressure, threats etc.; simulations to see if the applicant propagates or steps away from their own bias while making rulings or interpreting law and lastly, tests to see if their ideas align with the constitutional values of a country (such as freedom of religion or right to bear arms). Such a test would allow the examiners to make a comprehensive judgement about the candidate. It is equally important that the test is blind as that eliminates the propagation of an examiner's bias.
Even though the blind-test is in itself a comprehensive solution that aims at creating an egalitarian bench of judges, it is fair to set certain conditions for applicants in the best interest of the court. This includes demanding that applicants have at least some (exact time period need not be fixed) experience (as a lawyer) in and above the court (except in case of the Supreme Court, where they won't have to work in a higher court) they are applying to as a judge; to ensure they understand the position they are applying for well enough. Similarly, we should also make democratic provisions for an socially inclusive court bench. However, even in the interest of affirmative representation, applicants who do not meet the qualifying criteria must not be appointed. By means of affirmative representation or reservation, no applicant must have an unfair advantage over the other, and steps must be taken to ensure the court is not primarily being represented by only one group of people. For example, fast-track courts set up in India, to deal with certain women's issues under certain specified laws, must try to include a fair number of female judges. The last condition would be that a judge's appointment must not be permanent, i.e., judges should be held accountable for making unconstitutional rulings and must also be subject further to periodical blind-tests to ensure that they continue to posses the skills and values they once did, to qualify as a judge.
The alternatives to a blind-test include election of judges (either by the public, or a collegium of legal authorities) and political appointment. Both these are flawed, as they violate a fundamental legal principle, homeostasis to political climate. Public opinion and political climate keep changing but law should not oscillate in response to current affairs. If judges are elected, they will be elected in accordance to current conditions, which might change over short periods of time. Moreover, the voters have an opportunity to propagate their political bias. Similarly, an elected politician or even a group of politicians must not chose the judge because they can simply appoint someone who favours their political ideology.
Bearing these alternatives in mind, I conclude that blind merit-based tests are the best way to appoint judges in modern democracies, making provisions for inclusive representation in the judiciary.
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