Leading Article: The time has come for a Supreme Court

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The Independent Culture
THIS WEEK saw the passing of two of this century's great activist judges: Lord Denning at the age of 100 yesterday, and Harry Blackmun, the author of the Roe vs Wade decision which legalised abortion in the United States, at the age of 90 on Thursday.

Tom Denning was an outstanding figure in British law, fired by his belief that the common law was the essential defence of the common man against the abuse of power. Sometimes he went too far, inventing the law in the shape of his own prejudices - the young Anthony Blair, barrister, used to rail in the New Statesman against his anti-trade-union bias. And his refusal to consider the possibility that the police might tell lies perpetuated the miscarriage of justice suffered by the Birmingham Six.

But Denning's use of plain English was an important democratic advance. Next month's little-heralded "Wolfe Revolution", in which the English legal system drops Latin obfuscation in favour of plain words, pays him the highest compliment. And his contribution to the development of judicial review, which allows courts to restrain the use of state power, ensures his place in history.

His death, and that of Justice Blackmun, offer the chance to consider the place of "creative" judges in modern democracies. In their lives, they both helped to explode the myth that judgments, especially in the higher courts, are mere neutral, non-political interpretations of laws laid down by legislatures. That separation cannot be maintained, as the imminent second verdict in the case of General Pinochet so emphatically confirms.

That means that the rest of the judicial myth has to be ditched too: the fiction that judges are detached intellects in a social and cultural void, immune from bias and selected on merit by their peers. Legal judgments are an intensely political business - judges should not contradict the intentions of elected lawmakers, of course, but when abstract law comes up against concrete and hard cases, the choices that judges make are bound to be political. Especially when they are interpreting possibly conflicting laws laid down by statute and by the European Convention on Human Rights.

This means it is right to care who our judges are and how they are appointed. And it is also right to find the present British system of law lords sitting in the second chamber of the legislature seriously wanting. We need our own Supreme Court, and quickly. Its members - who may even include women - should not be appointed by the Government. It would be going too far to suggest that they should be directly elected; the kind of skills needed to run for election are inimical to the qualities of reflection needed in a judge.

They should be appointed for life - or at least until retirement - to give them independence. But they should be appointed in open competition by an independent body, and their appointment should be confirmed in public hearings by a parliamentary committee. The US system of hearings to confirm the appointments of Supreme Court judges can turn into a media circus, as in the case of Robert Bork, who was rejected. But it was a circus which encouraged a wide public debate about the issue of judicial bias.

Lord Denning's greatest service was to be a "character"; until we know as much about the quirks and foibles of the 12 law lords, and until we know that those quirks and foibles are a fair reflection of those of the nation, we shall remain at the mercy of hidden prejudices. An open and balanced Supreme Court should be Lord Denning's legacy.