Did magistrates and judges help bring an end to the riots that ravaged English city centres in August? I suspect the prime minister’s decision to put additional police on the streets made more of an impact, but it seems reasonable to suppose that some unexpectedly tough sentences, reviewed by the Court of Appeal last week, will have had a deterrent effect.

When democracy is in danger of breaking down, we rely on judges to maintain the rule of law. Perhaps that’s why so many people are studying the judiciary. University College London now has a Judicial Institute headed by Dame Hazel Genn, professor of socio-legal studies, and Cheryl Thomas, the UK’s first professor of judicial studies. Demonstrating that ex-judges are more willing to speak to academics than to journalists, the institute secured an interview with Lord Saville earlier this year, the only one I believe he has given since he published his much-delayed report on Bloody Sunday.

Penny Darbyshire, an academic at Kingston University in Surrey, has gone further: her new book Sitting in Judgment (Hart Publishing) is based on interviews with 77 serving judges, all of whom are quoted anonymously. Although little she says will come as a surprise to anyone who has ever spoken to a judge, Darbyshire has some justification for contrasting the fruits of her academic research with the ‘cruel and lazy journalism’ that has left the public imagining the typical judge to be an ‘archaic media folk-devil’ dressed up like a pantomime character.

Also at UCL, the constitution unit is running a three-year research project into the politics of judicial independence. To inform its research, the unit is holding a series of private seminars addressed by judges, politicians and others. A public note of the first of these seminars, drawn up under the Chatham House rule, explains why some participants felt that the current Judicial Appointments Commission had failed to produce hoped-for diversity while others supported the idea of parliamentary confirmation hearings for senior judges.

That issue produced something of a clash in July between two of the witnesses giving evidence to yet another body examining these issues, the House of Lords Constitution Committee. The video recording reveals a strong difference of opinion between Lord Kerr, a justice of the Supreme Court, and Lord Justice Etherton, from the Court of Appeal.

Etherton’s concern, in a word, is that policy-making judges may be appointed on the say-so of other policy-making judges. Though selection panels include lay members, he believes that judicial members are likely, in practice, to have a conclusive say in appointments to the Court of Appeal and the Supreme Court.

The appeal judge contrasted England and Wales with Canada, South Africa and Israel, all three being ‘vibrant democracies’ whose politicians had more involvement in judicial appointments at the higher appeal level. Judicial diversity was much greater in those countries, Etherton noted, and their independent judiciaries were willing to confront the executive and the legislature where necessary. While he believed the UK had a ‘cultural difficulty with any kind of openness’, Etherton called for much greater public involvement and transparency in the most senior judicial appointments.

‘Regrettably,’ Kerr told the committee in response, ‘I have to register my profound disagreement with Lord Justice Etherton.’ The Supreme Court was emphatically not engaged with creating policy, he insisted. That was a ‘fundamental misunderstanding’ on Etherton’s part. His support for judicial confirmation hearings was ‘very much a minority view’. As a former lord chief justice of Northern Ireland, Kerr had never heard it expressed by anyone he had worked with.

‘The vast majority of judges would greet the prospect of parliament interfering… with the appointment system with dismay,’ Kerr continued. In his view, it would be ‘the complete antithesis of the preservation of judicial independence to permit candidates for appointment to be quizzed by parliamentary committees.’ It would act as a massive disincentive to meritorious candidates and would be a most ‘retrograde step’. And it wouldn’t even increase diversity.

Etherton certainly did not want to see confirmation hearings akin to those in the US Senate. He would prefer an expanded appointments commission for the Supreme Court including representatives of the judges, the Law Society, the Bar Council, academics, other lay members and, critically, some politicians.

This idea merits further consideration. Despite Kerr’s support for the orthodox view of judicial law-making, appeal judges do have to take policy decisions when deciding cases. And countries that do not allow senior judges to choose their successors seem to have more women and minorities on the bench - although that does not necessarily make their judiciaries of higher quality than our own.

Darbyshire’s book is probably at its most revealing in showing how judges used to be appointed before the system was reformed; some, she discovered, had applied unsuccessfully for silk and were offered a seat on the circuit bench as a consolation prize. She reminds us, though, of a system in which all judges were appointed by a cabinet minister.

In scrapping a system that produced good judges but lacked transparency, we find ourselves with structures that appear more open and yet have done little to improve the quality of the judiciary. Judicial independence must never play second fiddle to openness and accountability. But nobody could seriously argue that our judicial appointments system is as good as it could be.