Selecting Constitutional Judges Randomly

In 2019, a citizen initiative was launched in Switzerland, proposing to have federal judges selected by lot among qualified candidates instead of being nominated by the Parliament. Although the idea might seem strange at first sight, at least for those who are not familiar with sortition, we believe that it is supported by strong arguments, which this article aims to explore in depth. In so doing, we abstract away from the Swiss case and consider normative arguments about methods for selecting judges which can be used in a variety of democratic contexts. Although many of these arguments apply to the selection of all sorts of judges, we focus on constitutional judges. It seems to us that it is for this particular category of judges that the considered procedure is the most relevant, given that there will usually be more qualified candidates than positions to fill, and that political intrigues are to be expected given the political power (of slowing or breaking down legislation) that these courts usually enjoy. One potential source of legitimacy for judicial review is the supposed political independence of constitutional judges. By being free from party membership and not subject to electoral incentives, they are expected to be better placed for an impartial legal assessment of the constitutionality of laws. Another potential source of legitimacy is their expertise in the field of constitutional law. From this viewpoint, it seems that the best method for selecting constitutional judges should be able a) to guarantee or maximize political independence, and b) to identify expertise. In light of this, the frequent practice of having constitutional judges nominated by political actors does not stand scrutiny. Randomly selected judges, in comparison, would be completely independent from elected bodies, which would maximize political independence, or so we shall argue. However, because expertise also matters, we argue that they should not be selected among the whole citizenry (and possibly not among all judges or lawyers), but among a set of constitutional “experts”, which brings the proposal closer to practices of certification, where constitutional judges are selected based on competence by another judicial body (like the General Council of the Judiciary in Spain, for example). In this paper, we thus lay out a case for a combination of political independence and constitutional expertise. We then put forward a selection mechanism based on random selection among constitutional experts and compare it to alternative modes of selection. Finally, we consider objections both to random selection and to restricting the franchise to constitutional experts.