French Interlude

Judicial appointments in the Fifth Republic

I’m in Paris this week. On the premise that you can learn more about your own government by examining another, I offer here a quick review of how judicial appointments to France’s highest courts operate.

As you will see, a French version of Confirmation Tales—Histoires de confirmation—would not have any content.

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The French Fifth Republic has been in effect since 1958. The president serves a term of five years. (The French constitution was changed in 2000 to reduce the term from seven years to five.)

The French parliament consists of two houses, the Senate and the National Assembly. The Senate consists of 348 senators. They serve six-year terms, staggered into two classes. The National Assembly has 577 deputies, who serve five-year terms, except that the president has broad power to dissolve the Assembly and to call for new elections.

The president has unilateral authority to appoint the prime minister. But the National Assembly can force the prime minister to resign by passing a motion of censure.

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France has three high courts with distinct responsibilities: the Conseil d’État, the Cour de Cassation, and the Conseil Constitutionnel.

The Conseil d’État operates as France’s supreme court for administrative law. The Cour de Cassation operates as its supreme court for civil and criminal law. Each hears and decides appeals from lower courts.

The Conseil d’État has seven divisions and more than 200 judges. It typically operates in panels of three to seventeen members. It decides more than 10,000 cases a year.

The Cour de Cassation has six separate subject-matter divisions and some 200 judges. Its panels usually have three or five judges. It decides more than 25,000 cases a year.

Neither of these bodies can decide open constitutional questions. Since 2010, they refer serious unresolved constitutional questions (questions prioritaire de constitutionnalité, or QPCs) to the Conseil Constitutionnel for decision. When the Conseil Constitutionnel resolves a constitutional question, the Conseil d’État and the Cour de Cassation then apply its resolution in the cases before them.

Beyond its new role in deciding QPCs, the Conseil Constitutionnel maintains its traditional function of ruling on the constitutionality of legislation after it has been enacted by the parliament but before it has been signed into law by the president. The Conseil Constitutionnel generally can exercise this function only when a specified authority refers the legislation to it for review.

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The members of these three bodies are selected through different means, but none involves confirmation.

The Conseil Constitutionnel has nine members (in addition to former presidents, who seldom take part). They are appointed for nonrenewable nine-year terms. Three new members are appointed every three years. The appointment authority is divided among the president, the president of the Senate, and the president of the National Assembly. Each appoints one new member every three years.

The parliament has a sort of veto power over the French president’s appointments to the Conseil Constitutionnel. Specifically, it may block an appointment by a three-fifths majority vote of the combined membership of the constitutional-law committees of the Senate and the National Assembly. But if the committees do not act to block the appointment, it becomes effective. (By contrast, in the American system, Senate confirmation of a nomination is a prerequisite to an effective appointment.) The committees of the Senate and the National Assembly each also have a veto power (again by a three-fifths majority) over appointments made by their chamber presidents.

No appointment to the Conseil Constitutionnel has ever been blocked by these parliamentary committees. Just last February, the committees fell one vote short of blocking President Emmanuel Macron’s appointment of Richard Ferrand.

Members of the Conseil d’État are appointed by the Council of Ministers (which consists of the prime minister and other ministers). They do not have fixed terms. Members of the Conseil d’État have civil-service protections, are eligible for regular advancement based on seniority, and are subject to discipline or revocation via internal disciplinary mechanisms rather than political checks.

Judges on the Cour de Cassation are appointed by the president, but the president is constrained to act only on the recommendation of another body, the High Council of the Judiciary (Conseil Supérieur de la Magistrature). They have strong protections against removal or reassignment, but are subject to a mandatory retirement age (ranging from 67 to 70, depending on their positions).

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France remains very foreign.

(I have drawn on various sources for this post, including Claude AI and Wikipedia, but I have undertaken to verify what I have learned from those sources. I am of course responsible for any errors and will undertake to correct them.)