Last Thursday the new Supreme Court held its first hearing. It decided that the Legal Services Commission should provide funding for the pending appeal in the JFS case (concerning the admissions policies of a Jewish school).

The Supreme Court will soon be determining issues of law of far greater importance than who should pay the costs of proceedings. And it is inevitable that the public will then begin to take a greater interest in who are our Supreme Court justices and in the process of their appointment.

The Supreme Court is rightly concerned to promote transparency. It welcomes visitors. Its proceedings will be available for broadcasting. Its website will provide detailed information about pending and decided cases. The public will see, and read about, a court resolving issues of considerable general importance, such as the questions decided this summer by the court’s predecessor, the Appellate Committee of the House of Lords: that control orders can be imposed on terrorist suspects only if they are told the gist of the allegations against them, even if this damages national security; and that the Director of Public Prosecutions must publish guidance explaining the criteria he will apply in deciding whether to prosecute those who assist the suicide of another.

An institution that draws public attention to itself, and which is deciding social and moral issues of real significance, will find, as Lord Phillips of Matravers, President of the Supreme Court, acknowledged last week, that “there will be more interest in who is appointed.”

In the US there was intense public speculation this summer about who President Obama might nominate to fill a vacancy in the Supreme Court. When he nominated Judge Sonia Sotomayor, her previous judgments, her views, her temperament and her background as the first Hispanic justice received considerable public attention and debate.

By contrast, in this country three appointments were made to the old Appellate Committee and the new Supreme Court last April on the recommendation of the Judicial Appointments Commission. Another vacancy is being advertised this week. The process has received virtually no attention outside legal circles.

The selection of a judge to sit in the Supreme Court is never going to attract as much public attention as the appointment of a judge on Strictly Come Dancing. But it is striking that there has been no public discussion of the criteria for appointment of our most senior judges (Section 27 of the Constitutional Reform Act 2005 simply says that “selection must be on merit”), or the qualities of potential “candidates”.

The name of a new justice emerges after private soundings, like an old-style papal conclave or a Conservative Party leadership contest before 1965. Yet there are wide differences in judges’ approaches to important issues of legal policy such as the proper scope of judicial review and the width of the discretion that should be accorded to public bodies in applying the Human Rights Act.

Very few of us would welcome the introduction in this country of the partisan process seen in Washington, where the nominee is the subject of a hearing before the Senate Judiciary Committee and then a vote in the Senate itself.

Senators have been known to focus on irrelevant considerations. In 1987 Senator Howell T. Heflin, of Alabama, put to Judge Robert H. Bork, President Reagan’s unsuccessful nominee, the extraordinary question: “Would you like to give us an explanation relative to the beard?” Judge Bork patiently explained that his facial hair had no relevance to his jurisprudential theories.

Senator Heflin then added, in case he had offended anyone, that he wanted to emphasise that “there’s nothing wrong with it because there are a lot of bearded voters out there that I don’t want to make mad”.

Discussion about judicial appointments need not be fatuous or politically partisan. The powers enjoyed by the Supreme Court make it an ever-increasing anachronism that the appointment process involves less public analysis than a parliamentary by-election or a contest to become deputy leader of the Labour Party. For the past few months, lawyers have been discussing the prospects of potential candidates for the judicial posts. The non-legal community will soon want to join in the debate, and should be encouraged to do so.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords. He acted for JFS in the first hearing before the Supreme Court.

This is an edited version of a speech to a seminar at Norton Rose, solicitors, earlier this week

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