Policy Making By Appointment The Composition of the Norwegian Supreme Court 1945-2009 Draft Paper prepared for presentation at The Faculty of Law, University of Oslo, May 12, 2011 William R. Shaffer,a Gunnar Grendstad,b Eric N. Waltenburga a Department of Political Science b Department of Comparative Politics Purdue University University of Bergen Beering Hall of Liberal Arts and Education 100 N. University Street Christies gate 15 West Lafayette, IN 47907-2098, USA N-5007 Bergen, Norway Fax: +1-765-494-0833 Fax: +47-55589425 [email protected] [email protected] [email protected] (ShafferGrendstadWaltenburg_PMBA_2011.pdf ) 1 Forutberegnelighet i rettsanvendelsen er kanskje like meget knyttet til viten om dommerne som til viten om regel og metode. Ketil Lund (1987:217). For de som kjenner prosedyren ved utnevnelse av høyesterettsdommere, fremstår disse konklusjonene som åpenbart uholdbare. Jens Edvin A. Skohgøy (2010:723). Policy Making By Appointment. The Composition of the Norwegian Supreme Court 1945-20091 1. Policy Making By Appointment In this chapter we examine the composition of the Supreme Court, since the characteristics of the sitting justices capture some of the experiences that can shape the political views of these policy makers. As indicated in the previous chapter, a very insular legal community dominates the Norwegian judicial system. Even the Supreme Court, located at the pinnacle of the Norwegian judicial process, is nearly invisible to the larger public. While no one expects justices to always respond to the ever-shifting winds of contemporary politics, the fact that the Supreme Court is a sheltered, almost obscure, political body is paradoxical in one of the world’s most democratic countries. Judges spend some important formative years in law school being socialized into the prevailing legal system, incorporating values into their political frame of reference. In fact, Supreme Court justices are recruited from that small pool of individuals who compiled the very strongest records in law school. Consequently, judges interpret public policy in light of such legal considerations as precedent, the meaning of laws under scrutiny, parliamentary goals embodied in legislation, and equitable considerations. There is little doubt that law school equips its graduates with the ability to engage in sophisticated legal reasoning that distinguishes lawyers from the population at large, or other professional groups for that matter. Certainly Supreme Court justices employ legal analysis when deciding cases. That is a given. Of course, as intimated earlier, the legal is not divorced from the political. Take the matter of equitable consideration, a criterion grounded in fair play. While a strict legal 1 Various Norwegian institutions and offices assisted in providing information: The National Archives of Norway, The Government Advocate, Director General of Public Prosecutions, The Ministry of Justice and the Police, the National Courts Administration, and Lovdata. We thank Anders Sondrup for research assistance in collecting information on the justices. His work was funded by the Meltzer Foundation at the University of Bergen. 2 interpretation might inform a Court decision, equitable consideration paves the way for extra- legal forces to influence the outcome.2 In fact, too much reliance on matters of “fairness” would be unsettling to scholars committed to what we call the “legal model” of judicial decision making (Magnussen, 2005). However, even what appear to be purely legalistic justifications may be cherry picked to support the ideological preference of a justice (Skoghøy, 2010). Be that as it may, many a judge will opt for a purely “legal” rationalization for staking out a policy position. Given that the judicial community is especially homogeneous (Hjellbrekke, 2007), if graduating from law school were the relevant characteristic of sitting justices, then they may be equally homogeneous in their decision- making behavior. But, they are not. They manifest differences in legal opinions that reveal a diversity of interpretation springing, in part, from their law school training, but also from socio-political factors impinging upon their judicial pronouncements. We contend that a lack of consensus on some key issues adjudicated by the Supreme Court may be the root cause for the non-unanimous decisions rendered. We focus primarily on the final stage of the process, and will make the case that votes cast in dissent from the majority opinion often reflect underlying political differences among the participating justices. Of course, the previously cited Ship Owner Tax case (Rt-2010-143) would appear to substantiate the claim, at least anecdotally. Certainly the Court seems to have become more muscular recently in its exercise of judicial review, as a matter of legal policy. However, in this 6-5 vote that went against the Social Democratic coalition government, all 5 minority votes were recorded by justices appointed by socialist governments, and 4 of the 6 majority votes were cast by those appointed by non-socialist governments. 3 A plausible interpretation would suggest that some underlying attitudinal predispositions were in play. 2 We do not intend to address the demarcation problem between legal and extra-legal forces. In general we refer to forces as all independent variables that are expected to influence judges’ decisions (Brace and Hall, 1997), as, for instance, when Dworkin (1988) uses the term ‘gravitational force’ when precedents narrow judges’ voting options, and when food breaks influence judges’ rulings (Danziger, Levav, and Avnaim-Pesso, 2011). For example, if legislators include the term ‘reasonable’ (rimelig) in a statute and leave the interpretation to the judge, does ‘reasonable’ amount to a legal or extra-legal force? On the other hand, legal sources refer to, e.g., laws, precedents, and legislative intent that invariantly present facts and arguments that may offer an anchoring, or not, for legal reasoning. 3 Still anecdotally, a cross-tabulation of the eleven justices’ votes by appointing government is statistically significant (Chi2=5.24; df=1; p<.02), whereas a cross-tabulation of the justices’ votes by experience at the Government Advocate, a hypothesis suggested by Georg Fredrik Rieber-Mohn (in, Kristjánsson 2010c) is not (Chi2=0.72; df=1; p<.38). 3 We recognize that offering concurring opinions also might reflect differing political values that have the potential to affect public policy (Corley, 2011). While we will analyze rigorously the complete non-unanimous Supreme Court five-justice panel votes taken in the post-War period, a systematic analysis of concurring opinions could easily strengthen the argument that the justices’ behavior reflects attitudinal differences, and possibly do so in a more nuanced fashion. Nevertheless, a great deal must be done with several decades of non- unanimous decisions before we venture into promising new areas. Although the Norwegian court system is appears to be a closed, insular one, an effort is made to select people of varying backgrounds, in order to incorporate a wide range of interests and life experiences (Domstolkommisjonen 1999). Of course, this principle is somewhat circumscribed by the fact that the pool of serious candidates is restricted to lawyers who performed extremely well in law school. Nevertheless, the extent to which this selection criterion is employed can produce a mix of justices more representative of the social, economic, and political predispositions of the broader public. Certainly those interests include, among other things, political ideology, gender-based issue positions, and regional orientations. If selecting applicants with an eye toward diversity does not have attitudinal implications, then appointing more women or aspirants from the far north might be only a politically correct charade of descriptive representation only. Not only are such extra-legal forces made manifest in the justices elevated to the Supreme Court, but those responsible for judicial recruitment are not immune from political preferences, as well. The reader should keep in mind that since World War II, the executive through the Ministry of Justice has dominated Court appointments. There are two phases of the process during which the government could influence, if not control, the appointment of justices: the (1) application and (2) recommendation stages. After announcing a Court opening, applications are accepted, and in more than one instance, potential candidates are asked, perhaps even lobbied, to apply. No doubt a purely sincere legal motive might encourage a well-placed member of the Norwegian elite, perhaps someone sequestered in the Ministry of Justice, to urge an eminently qualified individual to apply. In addition to legal bona fides and satisfying the norm of diversity, however, an applicant still may be recruited who shares values important to the executive. Once all applications, usually a limited number, have been submitted, a committee endorses those to be reviewed by the Ministry of Justice. The Minister of Justice also accepts the evaluation of candidates offered by the Chief Justice of the Supreme Court. Upon 4 evaluating the candidates through interviews and reference letters, the Minister of Justice submits a recommendation, which is approved by the King in Council. The appointment process was reformed in 2002 to increase the autonomy of the Court by establishing an independent Advisory Council for the Appointment of Judges.