In Print: Volume 88: Number 6
By Daniel H. Foote
88 Wash. U. L. Rev. 1745 (2011)
The theme of this symposium issue is “Decision Making on the Japanese Supreme Court.” From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration. One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary). The Supreme Court’s role in the lower court appointment process, and recent reforms designed to heighten transparency in that process, are the topics of this essay.
The basic outline of the lower court appointment process is widely known. Yet the actual operation of that process has been shrouded in secrecy. Based largely on analysis of the structure and organization of the Japanese judiciary, coupled with anecdotal evidence, for many years critics have charged the Supreme Court with stifling judicial independence by utilizing its control of the appointment process and personnel management in a politically motivated fashion or to compel adherence to certain norms. The Supreme Court, however, steadfastly has refused to divulge specific reasons for decisions on appointments or personnel management. In the absence of any such concrete information, the debate over judicial independence seemed destined to proceed endlessly, with charges based heavily on anecdotal evidence met by virtually complete silence.