Adrian Vatter/Maya Ackermann, Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013, Zeitschrift für Schweizerisches Recht (ZSR) 2014 I 517 – 537
Vatter/Ackermann – Richterwahlen in der Schweiz
Background
Federal judges are appointed by the United Federal Assembly, i.e. in a joint decision of all Members of the National Council and the Council of States (Senate). The only prerequisite for appointment – as for election to the National Council and Federal Council – is the right to vote on federal matters. All Swiss nationals aged 18 or over who are not under guardianship due to mental illness or incapacity are entitled to vote. A law degree, specific judgeship training and legal professional experience are not formal prerequisites for an appointment to the Federal Supreme Court, but practically mandatory.
On lower levels of the judiciary, Switzerland has a long tradition of lay judges and a legacy of mistrust against professional lawyers. In the Enlightenment period, the idea of separation of powers was understood to mean that academically trained professional judges appointed by monarchs should be replaced by lay judges. There were also practical reasons for having lay judges, as there was a shortage of trained lawyers in Switzerland. Today it is increasingly recognized that the judicial profession requires legal expertise, which is why in most cantons only appoint lay judges to first-instance courts, if at all. Among the federal courts, only the Federal Patent Court – a lower instance of the Federal Supreme Court – has judges with a technical background (and documented knowledge in the field of patent law).
Since forming of the federal nation in 1848, only legally trained persons, or persons with legal professional experience if necessary, have been appointed as judges on the federal court level. Appointing specialized judges with specific technical or medical expertise was considered as an idea when the Federal Insurance Court, the highest social security court, was created in 1917, but ultimately rejected. Thus despite there being no corresponding formal appointment requirement, all federal judges have legal training and extensive professional experience.
A special judgeship training programme has been offered in Switzerland since 2007 by the Swiss Judges’ Academy, an association of Swiss university law departments, the Swiss Association of Judges and the Foundation for the Continuing Education of Swiss Judges, but completion of the programme is not a prerequisite to be eligible for appointment. Special judgeship training is obligatory in most other European countries.
Switzerland’s 38 regular Federal Supreme Court judges hold full-time appointments. The Federal Assembly also elects 19 part-time federal judges who are primarily active otherwise in the field of law (lower court judges, professors, solicitors etc.) whom the Federal Supreme Court may involve as required.
As the electoral body, the Federal Assembly ensures that federal judges are appointed in compliance with appointment requirements and have the personal and professional qualifications for proportionate representation along the lines of the official languages, gender and political parties in particular. The official languages French and Italian are slightly overrepresented. Two fifths of all judges are women.
Federal judges are appointed for a term of office of six years, with the possibility of re-election. Originally, the term of office was only three years. This was extended to six years with the creation of the permanent federal court in 1874, as a certain stability was considered essential for a judicial authority. Legislators believed that lifetime appointments as was the practice in the United States and certain larger European countries already at that time, would be difficult to reconcile with Swiss customs and political institutions, such as the Landsgemeinde cantonal assemblies. The six-year term of office was intended to give every legislature of the Federal Assembly an opportunity to play a role in the composition of the Federal Supreme Court. Appointments of federal judges are not to coincide, however, with political elections. It is thus in keeping with Swiss legal culture for all officials of an authority, including judges, to be appointed for a specific term of office. Such appointment for a specific term of office is unique within Europe. Generally, appointments to constitutional courts and international law courts are for a set term of office without re-election possibility, while other judges are appointed for an indefinite period of time until reaching regular retirement age. The average term of office for federal judges is twenty years. By law, their association with the court ends upon attaining age 68.
The text below provides an analysis of appointments of federal judges from a sociological and political science perspective, discussing in particular whether the evolution of the Swiss political party landscape over time is reflected in the party-political composition of the Federal Supreme Court, and to what extent the concordance system of democracy influences the appointment of federal judges.
Summary
By way of introduction it is pointed out that although the judiciary has long been overshadowed by the other two branches of government and direct democracy, it still exerts major influence on politics through its case law. Yet in Switzerland there is scarce publicity concerning judgeship appointments, in contrast to other countries. Public discussion is however created by the fact that party membership is a de facto prerequisite for appointment to the Federal Supreme Court.
Two aspects of the concordance democracy system in place in Switzerland since the mid-20th century are of importance in respect of the Federal Supreme Court: voluntary proportional political representation, which means even smaller parties are represented in political institutions and committees (proportionality principle), and conflict resolution by compromise, which leaves the courts leeway to deal with creative ambiguity created in the process of legislation.
In respect of party politics the analysis reveals that early in the history of the Confederation more judges were non-party-affiliated than were party members. However, the percentage of unafiliated judges steadily decreased to zero after the last unaffiliated judge was appointed in 1953. The party-political composition of Parliament and shifts therein are reflected in the party affiliation of justices appointed to the Federal Supreme Court. The proportionality principle applies, albeit with a time delay, as adjustments to reflect changes in party representation in Parliament are not made immediately or at the end of a term of office but only in a by-election when a seat becomes vacant. Judges who stand for re-election can thus be reappointed even if the party with which they are affiliated is overrepresented vis-à-vis fractional party representation in the Federal Assembly. In the early period of the Confederation, most appointed federal judges were members of the “free” (liberal) parties. Towards the end of the 19th century there was an increase in the number of Catholic-conservative federal judges. After the First World War, the fractional proportion of federal judges affiliated with the Social Democratic Party and the Swiss People’s Party (National Conservatives) increased. Between 1960 and the early 1990s there was little change in the composition of party representation until the Swiss People’s Party increased considerably in percentage. As of 1999, the Green Party obtained seats on the Federal Supreme Court. Appointment by the Federal Assembly and observance of the proportionality principle afford the Federal Supreme Court a high degree of democratic legitimacy, ensuring that the values represented by membership in a given party are reflected as part of the judiciary in line with their popularity in society. This has the disadvantage however that highly qualified lawyers who do not wish to join a party cannot be Federal Supreme Court justices. In the literature there is criticism that appointment for a fixed term of office requiring re-appointment can create conformity pressure in cases of a politically and societally sensitive nature. International studies show however that Swiss judges have a very high level of de facto independence as compared to judges in other countries. In adjuciating cases, factors other than party affiliation, such as language cultural background, play a role, and most decisions are taken unanimously.