There is no question that in the United States there is an enormous problem appointing judges based on actual merit and the temperament of a judge. People are appointed to the bench that should never have set foot in a court of law, who allow their personal experience, religious background and other factors to cloud the ability to issue rational decisions based on any law.
It is common knowledge that judges are not appointed under any merit proceeding in the United States. The mechanism resembles a throw a name in the hat scenario, and the relevant State governor appoints that person to a judgeship. As most litigants who have experienced the truly unique and malicious judicial system in the United States realize, chaos and anarchy ensues.
South Africa and its legal system may offer a different perspective on appointing judges. The Helen Suzman foundation (HSF) has initiated a lawsuit against the Judicial Service Commission (“JSC“). requesting the records that determine the basis of who gets appointed and who does not. Judicial transparency is the key to South Africa’s current legal system as is the ability to hold judges accountable. The JSC nominates judges based on merit to be appointed by the President. Details of the lawsuit can be found here: http://hsf.org.za/projects/justice/litigation/hsf-heads-of-argument-jsc-case/view
The HSF raised, among others, the following legal issues:
What is the correct interpretation of s 174(1), (2) and (6) of the Constitution which relate to the appointment of judges;
How must the JSC exercise its power under s 174(6) when advising the President on judicial appointments;
Did the JSC consider irrelevant factors or alternatively fail to consider relevant material factors in arriving at its decision?