Should UK Judges Face Public Scrutiny? Lessons from a Shocking US Senate Hearing

Why this question matters

Judicial appointments sit at the point where law, constitutional principle and public confidence meet. A judiciary must be independent. It must also be trusted. The difficulty is that those two aims can pull in different directions.

A closed appointment process protects candidates from political pressure and media spectacle. But if the public cannot see how difficult questions about judgment, ethics and institutional values are tested, the process may appear remote or self-protective.

The US Senate confirmation model sits at the opposite end of the spectrum. Nominees can be questioned in public, under pressure and at length. That exposes candidates to accountability, but also to partisan framing, selective outrage and performative questioning.

The Netburn hearing as a case study

The immediate prompt for this article is the Senate Judiciary Committee hearing involving Sarah Netburn, who was nominated to serve as a United States District Judge for the Southern District of New York.

Public reporting and the official nomination record show that the hearing became controversial because senators questioned her over a prison-placement recommendation involving a transgender prisoner with a serious sexual-offence history. The questioning focused on judicial reasoning, prisoner safety, the rights of women prisoners and whether the decision reflected legal analysis or ideology.

The case illustrates both sides of public scrutiny. On one hand, the hearing forced a judicial nominee to answer direct questions about a decision that many members of the public would find troubling. On the other hand, the format encouraged confrontation, rhetoric and political performance.

The lesson is not that England and Wales should replicate the US process. The lesson is that public confidence may require visible mechanisms for testing judgment in the most senior appointments.

The UK process: independent, merit-based, but largely unseen

The Judicial Appointments Commission model in England and Wales is designed to protect judicial independence. It selects candidates on merit, requires good character, and operates within a structure intended to reduce political patronage.

That independence is a constitutional strength. Judges should not have to win political favour to be appointed. Nor should candidates be forced to promise outcomes, signal ideological loyalty, or defend every past decision in a public arena designed for political soundbites.

But insulation has a cost. The public sees relatively little of how candidates for senior judicial office are tested on judgment, temperament, ethics, constitutional principle, public confidence, vulnerability, equality, procedural fairness or institutional accountability.

The challenge is therefore not to weaken the JAC model. It is to ask whether the model can explain itself more openly, particularly for appointments at the highest levels.

What the US model teaches — and what it warns against

The US model has one obvious advantage: visibility. A nominee can be questioned publicly about legal reasoning, prior decisions, professional judgment and constitutional values. That creates a record and allows the public to see how the candidate responds under pressure.

But visibility is not the same as quality. Public hearings can reward performance over substance. Senators may use nominees as proxies for wider political arguments. Complex legal issues can be reduced to slogans. A candidate’s answer may be judged less by legal rigour than by whether it satisfies one side of a political divide.

England and Wales should therefore avoid importing the US confirmation model wholesale. But it should not dismiss the public’s legitimate interest in how senior judges are selected.

Should England and Wales add public scrutiny?

A limited scrutiny model could improve public confidence if it is designed carefully. The focus should not be political ideology, culture-war pressure or commitments on future cases. It should be competence, independence, ethical judgment, temperament, constitutional understanding and approach to difficult competing rights.

The strongest case for reform concerns senior roles: the Lady Chief Justice, Heads of Division, Court of Appeal appointments, senior tribunal leadership and other posts with substantial institutional influence. These are not ordinary appointments. They shape the administration of justice.

Public confidence may be improved if the appointment process gives more information about why a candidate was selected, what qualities were tested, and how concerns about independence, judgment and leadership were assessed.

A balanced model for the UK

The better route is a hybrid model. It should preserve the JAC’s merit-based independence while adding controlled transparency for senior appointments.

This would not satisfy those who want US-style confrontation. Nor should it. The aim is not spectacle. The aim is transparent assurance that the judiciary is independent, competent, fair and alive to the real-world consequences of judicial power.

The closing point

The Netburn hearing shows why scrutiny matters. It also shows why scrutiny can become dangerous. Public questioning can expose hard issues about judicial reasoning, but it can also drag the judiciary into partisan conflict.

England and Wales should not adopt the American confirmation model. The risks to judicial independence are too obvious. But the UK should be willing to ask whether its own appointment process is too opaque for a period of declining institutional trust.

A mature system should not fear transparency. It should design it carefully. The goal is not to politicise the judiciary. The goal is to strengthen confidence that those appointed to senior judicial office have been tested with rigour, independence and public responsibility.