Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.
Well, that is pretty much what is happening right now in Japan.
Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.
Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.
Well, that is pretty much what is happening right now in Japan.
Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.
Per Article 79 of the Kenpo, Japan’s postwar constitution, justices are initially appointed by the Prime Minister* but must then stand for election at the first general election following their initial appointment, and at ten-year intervals thereafter. The retention election provision has widely, and accurately, been regarded as toothless. The public does not know enough about the justices to vote in an informed manner, and the justices have always been reelected by lopsided margins. (The provision requiring reelection at ten-year intervals is especially useless: it has literally been decades since any justice was appointed at a sufficiently young age that he (and unfortunately I do mean “he,” not “she”) did not hit mandatory retirement at age 70 before facing a second retention election.)
Justice Tokuji Izumi, a career judge who retired from the Supreme Court earlier this year, is trying to change that, and in a very public way. Izumi–by all accounts one of the smarter judges around, and one whom I have heard praised specifically for his political savvy–is listed as one of the signatories and “originators” of a series of advertisements that have appeared in the Japanese media-including, most recently, a full-page ad in today’s issue of the Asahi Shimbun, Japan’s most prominent newspaper. The ads urge readers to vote against Justices Kohei Nasu and Norio Wakui on account of the positions that they took shortly after their appointment in a 2007 electoral malapportionment case, in which they were, shall we say, somewhat less than steadfast in their defense of equal voting rights for all Japanese citizens.
Electoral malapportionment has long been a thorn in the Court’s side, but to make a very long story very short: (1) Japan’s electoral districts have suffered from chronic malapportionment favoring rural over urban areas (actual voting disparities have on occasion topped 5:1); (2) this is one of the very few constitutional issues on which the Court has actually tried to force the government to act; and (3) the government (which, having always been controlled by the same party, has benefited from this malapportionment) has unsurprisingly failed to fix the problem.
You can get a sense of the nature of the campaign against Justices Nasu and Wakui by checking out the two cute little mascots on the home page of the organization’s website (lions? tigers? leopards? See this earlier post for proof that it is absolutely mandatory in Japan for all serious political and/or legal matters to be championed by some sort of mascot.) And see those signs they’re holding up? The left one is holding a sign that says, “One person, one vote.” Kawai desu ne! But what’s that sign that the right one is holding up? “One person, 0.6 of a vote.” Oh dear, that’s not so kawai now, is it. That’s pretty much all the Japanese I can muster, but it’s also pretty much all the Japanese you need to get the idea.
And in case you were wondering: Yes, Izumi did serve on the Court with both Nasu and Wakui. I wonder what his retirement party was like. Will they still send him Christmas cards?
On a more serious note, one might also wonder: Should any effort to discipline or remove judges for the positions that they take be considered an assault on judicial independence? Should it make a difference that the attack is, in this case, being led by a highly respected lifelong judge and former justice of the Supreme Court?
There is much more to say, but for more on the politics of the Japanese Supreme Court, the Court’s dismal track record in pretty much every area of constitutional law *except* voting rights, and even a bit on Justice Izumi’s turn to the left, may I somewhat selfishly suggest this article, which you can also find in print in the Texas Law Review.
Tip of the hat to Setsuo Miyazawa of Aoyoma Gakuin Law School for the heads-up. Colin Jones of Doshisha Law School is keeping an eye on this story for us, and perhaps he will have some on-the-ground reconnaissance to share with us in the coming days.
[* Technically, the Chief Justice is appointed by the Emperor on the advice of the Cabinet, and the Cabinet appoints the rest. But, as in pretty much any parliamentary system, the Prime Minister runs the Cabinet.]