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Judicial ReputationA Comparative Theory$

Nuno Garoupa and Tom Ginsburg

Print publication date: 2015

Print ISBN-13: 9780226290591

Published to Chicago Scholarship Online: May 2016

DOI: 10.7208/chicago/9780226290621.001.0001

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The Selection and Monitoring of Judges: The Spread of Judicial Councils

The Selection and Monitoring of Judges: The Spread of Judicial Councils

Chapter:
(p.98) Four The Selection and Monitoring of Judges: The Spread of Judicial Councils
Source:
Judicial Reputation
Author(s):

Nuno Garoupa

Tom Ginsburg

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226290621.003.0005

Abstract and Keywords

Chapter Five takes up the specific issue of the selection of judges, focusing special attention on a relatively new institution known as the judicial council. Judicial councils have spread around the world in recent decades, in part because they have been promoted as a best practice to enhance judicial independence. Councils play various functions: they can participate in the recruitment and selection of judges, in monitoring and discipline, and in promotions. We use analogies from corporate boards of directors to understand judicial councils, and also argue that they are likely to be unstable because demands for independence and accountability vary over time. We also conduct a multivariate statistical analysis. Despite many claims that judicial councils enhance judicial independence, we find that they do not. Instead, they are locations for contests of reputation among various audiences.

Keywords:   judicial appointments, judicial councils, selection, discipline, promotion

Judges everywhere strive to have a reputation for judicial independence, and the selection of judges is a central consideration in most theories of ensuring independence as well as accountability.1 Judges who are dependent in some way upon the person who appoints them cannot be relied upon to deliver neutral, legitimate, high-quality decisions. But there are a great variety of ways to appoint judges around the world: some are selected based on exams; others through political processes; and some, particularly in the United States, are even elected.2 The diversity of systems of judicial selection suggests that there is no consensus on the best means to guarantee independence or quality.3

At the same time, there is a trend toward insulating judicial selection from partisan politics. In the United States, this is reflected in the growing scholarly consensus in favor of “merit selection.”4 In other countries, it is reflected in the adoption of judicial councils, an international “best practice” designed to help ensure judicial independence and external accountability. Judicial councils are institutions in which multiple stakeholders come together to govern the judiciary, taking on various tasks that might include selecting judges, disciplining them, managing them, and promoting them. Proponents of judicial councils argue that (p.99) they are better able to pick judges on the basis of merit rather than politics. We thus see the emergence of a new orthodoxy in many different jurisdictions and legal traditions: merit selection of judges is good and other methods are retrograde. Because there are few common metrics to evaluate the comparative independence or quality of judiciaries, the new scholarly consensus is largely theoretical, built on anecdotal rather than systematic evidence.5

It is worth emphasizing that, along with our account of hybrid systems in chapter 2, the spread of judicial councils undermines the classic distinction between civil and common law systems, embodied in career and recognition models of appointment systems. As we discussed in chapter 1, these two structures are based on very different logics and produce different reputational incentives for the courts. But the ubiquity of institutional reforms of judicial appointment processes should help us dismiss the idea that legal traditions represent unchanging institutional configurations. And the fact that systems as diverse as those in the United Kingdom and Mongolia have adopted judicial councils suggests that something is going on that defies traditional categorizations of legal systems. There seem to be forces far greater than tradition at work.

We have already argued that the distinction between career judiciaries and recognition judiciaries is sometimes misleading, and this is apparent when one looks at the selection and appointment of judges. In Britain, judges traditionally tended to be selected from among those who served as barristers and later as Queen’s Counsel (or King’s Counsel). All current justices of the UK Supreme Court (but one6) were recruited from the English, Scottish, and Northern Ireland appellate courts (the High Court of Justice, Court of Appeal, and Court of Session, respectively). Some scholars have seen this as a version of the career model.7 In Israel, most appointments to the Supreme Court are individuals who have served previously as clerks. Although India’s constitution provides that the composition of the Supreme Court can include lawyers of high recognition, it is overwhelmingly dominated by the senior judges from the states’ high courts.8 In the United States, all but one member of the current Supreme Court served previously in appellate courts, confirming a trend established long ago.9 These recognition judiciaries have some careerist elements.

To be sure, these “career” models are distinct from the classical bureaucratic model in many ways, as noted in chapters 2 and 3. First, career judiciaries are fundamentally dominated by a bureaucratic approach to the career, in which apolitical seniority considerations are central, encouraging the development of collective reputation. Recognition judiciaries, on the other hand, have an informal or unstructured “career” (p.100) mingled with a selection mechanism that is more politicized in nature and hence amenable to the cultivation of individual reputation. Second, judges in career judiciaries have a judicial position as the formal first step in the career, while judges in recognition systems start with a nonjudicial position. This allows for different levels of screening. Finally, transfers to courts of equal seniority are generally part of the career path in career judiciaries but not in recognition judiciaries.

If we look at the supreme courts of US states, we see a wide range of different selection mechanisms, all within the broad category of recognition judiciaries. Table 4.1 presents the data and shows that merit selection is the most popular mechanism. (Note, though, the size of these courts is fairly stable across states and across selection mechanisms; we also find that there is little variation in the average age of the current justices across US states.)

Table 4.1 American states’ supreme courts

State

Court size

Mechanism of appointment

Alabama

9

Election

Alaska

5

Merit selection

Arizona

5

Merit selection

Arkansas

7

Election

California

7

Appointment

Colorado

7

Merit selection

Connecticut

7

Merit selection

Delaware

5

Merit selection

Florida

7

Merit selection

Georgia

7

Election

Hawaii

5

Merit selection

Idaho

5

Election

Illinois

7

Election

Indiana

5

Merit selection

Iowa

9

Merit selection

Kansas

7

Merit selection

Kentucky

7

Election

Louisiana

8

Election

Maine

7

Appointment

Maryland

7

Merit selection

Massachusetts

7

Appointment

Michigan

7

Election

Minnesota

7

Election

Mississippi

9

Election

Missouri

7

Merit selection

Montana

7

Election

Nebraska

7

Merit selection

Nevada

5

Election

New Hampshire

5

Appointment

New Jersey

7

Appointment

New Mexico

5

Merit selection

New York

7

Merit selection

North Carolina

7

Election

North Dakota

5

Election

Ohio

7

Election

Oklahoma (civil)

9

Merit selection

Oklahoma (criminal)

5

Merit selection

Oregon

7

Election

Pennsylvania

7

Election

Rhode Island

5

Appointment

South Carolina

5

Appointment

South Dakota

5

Merit selection

Tennessee

5

Election

Texas (civil)

9

Election

Texas (criminal)

9

Election

Utah

5

Merit selection

Vermont

5

Merit selection

Virginia

7

Appointment

Washington

9

Election

West Virginia

5

Election

Wisconsin

7

Election

Wyoming

5

Merit selection

Source: Websites of the American states’ supreme courts.

(p.101) From our comparative perspective, the selection of judges is a crucial mechanism for screening agents and thus indirectly affects the environment for building reputation. People who wish to become judges must invest their time and energy in certain activities to develop their reputations. If selection is dominated by a political process, political investment will be the most important; if it is a bureaucratic process, a different type of effort will be required. Judicial councils, by nature, are usually mixed bodies involving different types of audiences. They prevent any one audience from dominating, while also providing close monitoring of the judiciary.

This chapter describes the global spread of judicial councils and provides a theory of their formation and features. By our estimate, over 60 percent of countries have some form of judicial council—up from 10 percent thirty years ago.10 We also provide some evidence as to whether different designs of judicial council affect the judicial reputation for quality. Although we find that there is little relationship between council adoption and quality, this chapter argues that the eternal struggle for (p.102) balance between independence and accountability ensures that judicial councils will continue to be a locus of institutional reform. Yet there are limits to the efficacy of institutional solutions to problems of judicial independence. Although councils serve as an arena for contestation for various groups with an interest in judicial performance, they do not by themselves guarantee the substantive outputs of independence and quality.

This chapter is organized as follows. First, we provide an economic theory of the formation of judicial councils and identify some of the dimensions along which they differ. Next, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between council design and quality. Our theory nevertheless offers a positive explanation for why judicial councils remain attractive institutions. Finally, we discuss the national experience of several legal systems in light of our theory, and we conclude with a discussion about the implications of the analysis for state judicial selection.

The Tension between Accountability and Independence

A long and established literature argues that the ideal of judicial independence is a crucial quality of legal systems and indeed inherent in the notion of judging.11 Naturally, the ideal is not always met—for it remains the case that in every legal system judges are appointed and employed by the state. It would be unusual indeed if judges did not have a role in implementing social policy, broadly conceived.12 Typically, then, in democracies, the degree of judicial independence actually granted reflects broad choices of the regime. It may make sense, for example, to have relatively greater judicial independence in the economic sphere so as to maintain credible commitments for investment. Alternatively, liberal polities may wish to use judicial power to ensure a zone of autonomy for individuals.

The delegation of power to judges implies some need for judicial accountability. While judicial independence has been widely studied,13 accountability has been the subject of much less inquiry.14 Accountability requires that the judiciary as a whole maintain some level of responsiveness to society, as well as a high level of professionalism and quality on the part of its members.

Judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan (p.103) political process, while ensuring some level of accountability. Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotions, and discipline. The first model of judicial self-management arguably errs too far on the side of independence and typically a collective form of reputation. The alternative of pure political control may make judges too accountable in the sense that they will consider the preferences of their political principals and external audiences in the course of deciding specific cases. There is a wide variety of models of councils, in which the composition and competences reflect the concern about the judiciary in a specific context, balancing demands for accountability and independence.

While adequate institutions might enhance judicial independence and minimize the problems of a politicized judiciary, increasing the independence enjoyed by judges risks creating the opposite problem—overjudicializing public policy.15 There is a risk of judges with a reputation for independence being called on to decide ever more important cases beyond their traditional purview. It is our view that the periodic reforms of judicial appointments and management that we observe within and across countries reflect a dialectic tension between the need to depoliticize the judiciary and the trend toward judicializing politics. Independence is needed to provide the benefits of judicial decision making; once given independence, judges are useful for resolving a wider range of more important disputes. As the judiciary begins to take over functions from democratic processes, however, the pressure for greater accountability mounts.

Figure 4.1 presents a stylized summary of the recurrent calibration between independence and external accountability, synthesizing the different experiences discussed above. Beginning in the upper right corner, a judiciary has little independence or influence. When judges carry little weight over public policy and politics, concerns over independence tend to dominate and reformers may push for a move from a politically dependent weak judiciary to a strong, self-regulated judiciary. This shift gives rise to a judiciary that has some control over its own affairs though is not politicized. Frequently, though not inevitably, judges use this independence to increase their influence over public policy, perhaps as a result of exogenous events. This is represented by a shift to the lower left corner of the figure. However, once politics is judicialized in a significant way, pressures arise for greater political accountability, represented by a shift to the lower right. The judiciary remains strong but is more subject (p.104)

The Selection and Monitoring of Judges: The Spread of Judicial Councils

4.1 Controlling the judiciary

to oversight and control. As accountability becomes focused only toward a small group of principals and as assaults on judicial independence become more successful, we may in some circumstances observe a move from a politically accountable strong judiciary back to politically dependent weak judiciary, as in a rising authoritarian regime. The right side of the figure thus represents a politicized judiciary and the lower half a judicialized politics. This dynamic framework provides a tool for understanding the various institutional adjustments observed in different countries, which we will develop in case studies later in this chapter.

Note that we are not asserting that movement across the various zones of the figure is inevitable. Institutional configurations can be stable for long periods of time, and there is no necessary condition that judiciaries must shift their location in the figure. What we believe the figure does capture, however, is the potential for cycling among different models of judicial governance and the nature of the pressures that judiciaries will face in particular configurations. Judicial independence and accountability may tend toward instability.

When problems of cycling occur in governance, institutions tend to be unstable. The cycling problem was, in some sense, first identified by Aristotle in the context of his classic analysis of types of government. He thought dictatorships would generate resistance from powerful groups (p.105) that would form an oligarchy, which in turn would be replaced by a democracy. But democracy too would lead to chaos and calls for a new dictatorship. Aristotle’s solution to this problem was to create a mixed government that would allow representatives of various social forces in different institutional capacities. Similarly, a multipartite governance body may provide an attractive solution to problems of judicial governance under situations in which calibration is constantly needed when new problems arise.

An Agency Theory of Judicial Councils

Judicial Councils as Intermediaries between Principal and Agent

In this section, we use the principal-agent model laid out in the introduction to develop a theory of judicial councils. If judges are the agents and society is the principal, on whose behalf the judges exercise power, we are faced with the standard problem of information asymmetry: as a judge’s expertise increases, her potential effectiveness increases as well, but her accountability decreases.

A judicial council is an intermediate body between the society and judges. It might be seen as analogous to a board of directors in a corporation.16 Just as shareholders utilize a board as a system to monitor the managers of a corporation, the public may wish to set up (and pay for) a judicial council to manage judicial agents. Regardless of whether collective or individual reputation predominates, the principal will benefit from having a specialized monitor. Like a board, the judicial council might have a representative appointment system, in which different stakeholders have agents who then negotiate over governance, in order to minimize possible rents created by asymmetric information. The council thus serves as an intermediary trustee whose role is both to exercise expert oversight and to filter out political influence.17

Analogous to a corporate setting, one can think of two different types of “shareholders” within the principal: an uninformed and uninterested majority made up of members of the general public, for whom the opportunity costs of inquiring about judges are high, and very well-informed minorities with leverage to influence agents. The well-informed minority might include politicians, interest groups that would like favorable decisions by courts, and lawyers. The principle of judicial independence aims to avoid possible capture by the minority and also to align the interests of the judges with those of the majority, the general (p.106) public. But given the asymmetry of information between the vast majority on one hand and the minority (as well as the judges) on the other hand, an intermediate body might be necessary to limit opportunism and minimize agency costs. The judicial council serves as just such a body. Its role is to limit agency costs and reduce the likelihood that any particular minority will use the court system to its advantage vis-à-vis the vast majority of the population.

A multimember judicial council can be considered a kind of governance technology. Before it was invented, appointments of judges were usually handled by politicians (such as a president or minister of justice) or else by judges themselves. Each of these options has its own problems. By including appointees from multiple constituencies, in theory, the judicial council helps prevent domination by any one of them.

At the same time, the nature of specialization creates a new problem—namely, the capture of the judicial council by the judiciary itself or by an external body that wishes to manipulate the judiciary. This is the classic question of “who guards the guardians?”18 The demand for limiting agency costs, combined with the possibility of capture, suggests that judicial councils might be unstable bodies. Periodic reforms may be required to correct deviations when a judiciary becomes either too accountable or too independent. We imagine that judicial governance requires, to some degree, learning by doing and that as new agency problems materialize, governance structures will be under pressure to change in an attempt to rectify them.19

The structure of judicial councils is influenced by the interaction between preferences, incentives, and politicization. When judges are subject to any form of political scrutiny, we should expect to see some alignment between the preferences of judges and politicians. (This might be lagged because of long-term appointments.) This may take the form of what we might call ex ante politicization, in which judges are screened for political criteria, or ex post politicization, through pressure or corruption after the judge is appointed. Our conjecture is that a judicial council is designed to reduce both ex ante and ex post politicization, but councils may have different emphases depending on the institutional problems they face. In stable systems such as the United States, in which ex post interference with judicial independence is rare and frowned upon, the council may play a more important role in screening at the appointment stage. On the other hand, where norms of judicial autonomy are less developed, the council may play a greater role in preventing ex post politicization through control over promotion, management, and discipline. (p.107)

Judicial Incentives

To understand why councils might be effective, we first need to understand the preferences and incentive structures of the judges as agents. As the prominent American appeals court judge Richard Posner has argued, we ought to begin by assuming that judges have the same set of preferences as everybody else.20 Obviously judges, like others, care about their income. They may, however, be a bit more risk-averse and care more about nonmonetary payoffs than the average individual; this would explain why they select a stable, prestigious judicial career instead of the more lucrative practice of law. This might lead us to expect judges to be sensitive to changes in prestige or social influence and to shifts in risk. For example, judges might be worried about threats to “judicial independence” not only for instrumental reasons but because such threats undermine judicial status and dignity.

To understand why an intermediate body may be a useful mechanism for controlling agents, we need to consider alternatives that might operate to restrain judicial opportunism. Two standard alternatives in the literature on institutional design are markets and direct external control by the principal. Standard market-oriented mechanisms do not work to constrain judges because judges are state officials operating in a highly subsidized monopoly (the court system) without market discipline. While individuals can opt out of the state-provided system and use alternative dispute resolution mechanisms, such behavior is unlikely to have a significant effect on the welfare of the judiciary (even though in some jurisdictions, retired judges can serve as “rent-a-judges” dispensing private justice). Another possible mechanism is direct control by the principals, through the hiring and firing of judges. This is difficult because of the information asymmetry inherent in judging: external actors typically have trouble verifying whether judges have actually followed the law or not. Furthermore, the threat of external enforcement potentially reduces judicial independence and therefore is constrained through structural insulation of the judiciary. For these reasons, we cannot rely on external or market-oriented mechanisms to limit opportunism in the judicial system.

Judicial careers are structured differently in different parts of the world, as we noted in chapter 1. In some countries, like Japan, judges tend to operate in bureaucratic hierarchies and spend their entire careers in the judiciary. Whoever controls advancement in this career hierarchy (p.108) is thus very important. For “recognition” judges, such as those in common law systems or those appointed to constitutional courts in civil law countries, prestige among the public or with other branches of government is very important, but once selected into the judiciary, these judges have relatively few opportunities for advancement. For this reason, they may be less sensitive to external pressures and performance evaluations from any source, including judicial councils.21 We expect that judicial councils in common law countries will be more likely to have power over appointments rather than promotions, which are relatively rare.

Judicial Councils as Monitoring Devices

We view judicial councils as devices to reduce agency costs in the judiciary, although we do not assert that they are necessary or sufficient bodies to accomplish this task. In this section, we describe the membership of a prototypical council and the extent to which powers are shared among the courts and other branches of government.

The council is composed of three possible types: (1) members of the majority (laymen), (2) members of minorities that seek to capture the judicial agents (possibly including lawyers, politicians, and law professors), and (3) judges themselves. Extending the corporate law analogy, we might see judges as analogous to inside directors in a corporation, while the others represent shareholders and perhaps even independent directors. It is important to note that in most situations, distinguishing between laymen and politicians is impossible, since they are all usually appointed by other branches of government.22 Judges on the council are typically appointed by the supreme court or by other courts, while lawyers are appointed by the law society or bar association.23 The council is theoretically accountable to the public, but different accountability rules will make the council more or less likely to be captured by the judiciary (which might promote professional interests) or minority shareholders (who might promote lobbying or minority interests).

We expect that the mechanism of appointment of judicial members in the council will matter for outcomes. In some cases, all members of the council are appointed by the same body (for example, the parliament); in other cases, different bodies of government intervene in the appointment process. A more heterogeneous council will result when different bodies are involved in the appointment of the council, either by a sequential process of nomination and confirmation (members of the council must appeal to different constituencies) or by a quota system where different bodies of government appoint a predefined number of members.

(p.109) The size, appointment, and composition of judicial councils are important design dimensions. It is often argued that judges should constitute the majority of the members of the council to enhance independence. Even when the judges are not a numerical majority in the council, however, they might have a dominant or preponderant role. To start with, most members of a judicial council must rely on information provided by the judiciary itself. In addition, a judicial council does not exert direct control over the judiciary (which would hurt the independence of judiciary) but exercises a configuration of powers that mix authority and accountability. This configuration is usually complex and full of tasks that call for expertise by judges. Furthermore, as between judicial and nonjudicial members of the council, asset specificity is asymmetric, meaning that judges may have particularly strong incentives to represent judicial interests on the council. After their service on the council, judges return to their professional careers inside the judiciary, whereas nonjudges will go back to their careers outside the judiciary, which may or may not have any relationship with judicial management issues. Perhaps this is why we observe very little correlation between the number of judges on the council and the level of independence.

Institutional Environment

The role and importance of the judicial council depend very much on other aspects of the institutional environment. Depending on the power and preferences of the judiciary, the monitoring activity of the council can be more or less extensive. Take performance measurement, for example. Even apart from the technical challenges of devising an adequate metric to evaluate the inherently complex phenomenon of judicial performance, judges might react differently to being measured, depending on how it is likely to affect their careers and role in the community.

In addition, performance measures applied by a judicial council reduce the influence and power of senior judges by limiting their ability and discretion to shape the judiciary for the next generation. Before the creation of a judicial council, the senior judiciary could claim a near monopoly on the expertise required to evaluate judges. After a council is introduced, there might be competition for control among the different actors within the council. For these reasons, transplanting any given model of a judicial council and ignoring the local institutional environment might generate unexpected results.

At the same time, demand for a judicial council is intrinsically linked to the reputation, importance, and functioning of the judicial system (p.110) as a whole. The more extensive judges’ powers, the more important it becomes to address any potential conflict between the common good and judicial incentives. But the less important the judiciary is in a given institutional setup, the less need there is for achieving the appropriate balance between independence and accountability. We expect that judicial councils will have greater competences but fewer judges when judges have a good deal of power. This is because there will be external demand from the public and other constituencies for monitoring of the relatively powerful judiciary. Where judges have less power, outside actors may be more accepting of a council with a majority of judges but seek to assign the council fewer competences. In our analysis that follows, we use the presence or absence of judicial review as a proxy for a more or less important judiciary.24

What Do Councils Do?

Competences and Composition

In this section, we categorize the function and structure of judicial councils and note that they operate in very different legal environments.25 Broadly speaking, judicial councils have three important competences:

  1. 1. Housekeeping functions (managing budget, material resources, and operations)

  2. 2. Appointment of judges

  3. 3. Performance evaluation (promotion, discipline, removal and retention of judges, and judicial salaries)

Applying the agency framework, we note that housekeeping functions seem to be designed to prevent moral hazard: by insulating the judiciary from management of resources, the council prevents corruption or distraction from the core task of judging. Selection processes are designed to deal with problems of adverse selection: we need to screen those who will exercise significant power. Performance evaluation addresses moral hazard in that it prevents judges from shirking, but within our framework, it also contributes to the cultivation of reputation by providing information to particular audiences.

For all these functions, the key factor is effective calibration between judicial independence and external accountability. This calibration can be achieved, for example, by the composition or membership of the council, by the appointment mechanism, or by sharing certain (p.111) functions with other branches of the government or other bodies (even the public in the case of elected judges). We do not assert that there is a universally optimal balance between independence and accountability but understand that there is a limit to how far one can move in either direction within democracies.26 Moving too far in either direction may trigger pressures for a shift as idealized in figure 4.1.

Whereas the first competence, housekeeping, is purely managerial, the second and third competences are related to career incentives and more directly contribute to judicial quality. Housekeeping functions deal with practical questions concerning the organization and running of the judiciary.27 These functions can, of course, potentially affect judicial independence—for example, if material incentives are used to reward certain types of judges. Obviously managerial competences are also important for the efficiency of courts and, in that respect, shape the quality of the legal system. Nevertheless, the other two competences (appointment and performance evaluation) are more directly related to judicial career incentives. If institutions matter for judicial quality, they matter because of their impact on judicial incentives.28

The Interaction of Competence and Composition

We are particularly interested in whether composition correlates with competence. One hypothesis is that judges, particularly those in systems that emphasize collective reputation, will resist external regulation and control. Therefore if nonjudges are the majority on the council, we might observe that the council is given less substantive competence, but when judges are the majority, competences are high. A competing hypothesis is that judicial councils (a relatively late historical development) have been set up to control judges and ensure accountability. If this were the case, we should see the percentage of judges on the council negatively correlated with the extent of its competence.

We can frame this as the question of whether judicial councils are set up to ensure independence of judges from the principals or accountability to the principals (see figure 4.1). If judges are a majority on the council, the assumption is that judges utilize the council to exercise self-government and maintain independence. If judges are a minority on the council, the assumption is that the council is a device to constrain the judges and render them more accountable. These two types of councils reflect quite different goals.29

To summarize, judicial councils will vary in terms of their competencies and their composition. We view extensive competence of a judicial (p.112)

Table 4.2 Competence and composition: Typology of judicial councils

Competences

Composition

Judges from supreme court dominate

Judges from lower courts dominate

Nonjudges dominate

Extensive (discipline, removal, promotion, appointments)

Strong hierarchical judicial council (Mexico, Thailand)

Strong nonhierarchical judicial council (Italy, France)

Politicized judicial council (Ecuador, Barbados, Singapore)

Intermediate (appointments only)

Hierarchical self-regulating judicial appointments commission (Bangladesh)

Nonhierarchical self-regulating judicial appointments commission (Belgium)

Judicial appointments commission (United States, United Kingdom, Canada, Netherlands, Germany)

Minimal (housekeeping functions)

Weak judicial council (Panama)

Weak judicial council (Brazil, Hungary)

Weak judicial council (Paraguay)

council as enhancing judicial accountability. We also follow the conventional wisdom that assumes that judicial majorities on the judicial council promote independence. Considering competences and composition, we can imagine several different configurations (see table 4.2). A judicial majority with extensive competences indicates a strong council, whereas a judicial minority limited to housekeeping functions is likely to be a weak, and possibly politicized, council. Nevertheless, the performance of the council will depend on whether or not the judges in the council behave as a homogeneous body. This is easily achieved when judges come from superior courts, since these judges tend to reinforce the judicial hierarchy. If the judges come from various different courts, there may be intrajudicial politics that prevent the judiciary from acting in unified fashion: we may sometimes observe the emergence of judicial associations or unions that provide a solution to collective action problems. Table 4.2 displays the various possible models along with some examples of their operation.

This discussion suggests that councils are not at all uniform. Local institutional problems, represented by the location in figure 4.1, will produce pressures for different types of councils in different circumstances. Even within a country, we may see variation over time as different institutional problems arise.

Case Studies

This section describes the operation of judicial councils in a number of different countries to determine whether our argument withstands (p.113) scrutiny. Judicial councils as such were initially a European phenomenon: building on an earlier model, France established the first High Council of the Judiciary (Conseil Superieur de la Magistrature) in 1946,30 followed by Italy in 1958.31 But as we shall see, the American model of merit selection based on proposals by an expert committee is an older analogue. Our focus here is on a range of cases from various legal traditions.

United States

Judicial selection in the United States has gone through several waves.32 In the early years of the nation, legislative appointment systems dominated. In the mid-nineteenth century, however, partisan elections were introduced in many states in response to concerns that judges were captured by special interest groups. From our perspective, this shift reflected the rise of the uninformed majority within the principal, as citizens responded to concerns of capture by a minority. However, partisan elections led to their own set of problems. Rather than truly arising from the people, judicial candidates came to be controlled by party bosses.33

In many American states, concern over traditional methods of judicial selection (either appointment by politicians or direct election by the public) led to the adoption of “merit commissions” to remove partisan politics from judicial appointments and base selection on merit.34 These emerged as a model in the early twentieth century, reflecting the progressive movement’s belief in technocratic government. Merit commissions can be seen as analogous to judicial councils, though their scope of activity may be more limited. Since in common law systems the judiciary is not a “career judiciary” in the civil law sense, there is not as much need for having an independent commission handle discipline, promotions, and reassignments; the more important moment of institutional choice is the initial appointment. Yet the basic institutional design—namely, setting up nonpartisan mixed bodies to screen and select judicial candidates—is identical to the judicial commission.

Sometimes called the “Missouri plan” (although some assert that it was first adopted in California) or “merit plan,” this system features a nonpartisan judicial selection commission composed of judges, lawyers, and political appointees. (The percentage of nonlawyers is determined by law and ranges from 18 percent in Tennessee to over 50 percent in Hawaii.) A famous 1906 speech by Roscoe Pound inspired this institution, and it is consistent with early twentieth-century beliefs in the value of technocracy and administrative insulation from politics.35 (p.114) In some states, the merit commission is exclusively responsible for nominating judges, while in other states, it sends a set of candidates from which the governor chooses appointees. Merit plan judges are typically subject to uncontested retention elections, which judges rarely lose.36 While American states exhibit a variety of approaches, it is clear that the merit plan has become the dominant model within the United States. As Professor F. Andrew Hanssen put it, “There is today a strong consensus that, of all the procedures, the merit plan best insulates the state judiciary from partisan political pressure.”37 As of 1994, twenty-three states used merit plans for initial appointments to the supreme court,38 with most states adopting these institutions in the 1960s and 1970s.39

A general assumption in the literature is that merit plan systems serve to expand judicial independence.40 For example, Hanssen tests the effect of partisan division on appointment and retention systems, assuming that merit plan implementation correlates with independence.41 He finds that, broadly speaking, states using merit plans tend to have higher levels of political competition (and hence more presumed demand for judicial independence) than those using partisan elections.42 Hanssen also finds that states switch to merit plans when they have increased party competition and policy differences between parties. This is consistent with literature that emphasizes the role of partisan competition in incentivizing judicial independence.43

Nevertheless, we know of no study that has demonstrated an actual improvement in judicial independence or quality after the adoption of a merit plan, and the actual impact on judicial quality is debatable.44 In a comprehensive review of the social-scientific literature, Malia Reddick concludes that there is little support for “proponents’ claims that merit selection insulates judicial selection from political forces, makes judges accountable to the public, and identifies judges who are substantially different from judges chosen through other systems.”45

We view the merit plan as a device to mediate between independence and accountability in accordance with our theory. As a common law country with judges who tend to be appointed relatively late in life, the United States has little need for independent bodies to engage in promotion of judges. Thus the commissions play a relatively limited role but one that focuses on the crucial locus of partisan pressure—namely, the appointment process. This illustrates the importance of understanding institutional variation in conditioning demand for the judicial council model.

(p.115) Brazil

The design of the Brazilian judiciary has traditionally been decentralized, in a model greatly influenced by the United States.46 Although decentralization has serious administrative and financial advantages, it has also created serious drawbacks in terms of effective disciplinary action against wayward judges and accountability of court administration (including nepotism in court staff appointments).47

Brazil’s first judicial council was the National Council of the Magistracy (Conselho Nacional da Magistratura, or CNM), which was created through constitutional amendment in 197748 and established in 1979. This council had seven judges chosen by the federal Supreme Court out of its members. The primary function of the council was purely disciplinary, and it had no budget or administrative functions. The constitutional amendment was quite limited in empowering the council. At the time, Brazil was under a military dictatorship, and though it gave some formal powers to judges, the council was likely created to assert greater control over the judiciary.49 The shift toward the CNM meant that judges had some formal control over their affairs, but in law and practice, this was quite limited. Rather, using the Supreme Court as a proxy, the military was able to restrain lower court judges while preserving nominal judicial autonomy.50 The CNM served as an intermediate body to facilitate control of agents by the principal.

In 1985, the dictatorship fell. With the passage of the Brazilian Constitution of 1988, the CNM was eliminated, leaving judges self-governing and subject to virtually no oversight. Constitutional guarantees of independence were adopted and became effective. In addition, the complexity of the 1988 constitution delegated many types of controversies to the judiciary, including the so-called constitutionalization of private law through recognition of the social functions of property and contracts. While judges had formally enjoyed the power of constitutional review even under the former constitution, the actual exercise of the power was highly constrained. By constitutionalizing many aspects of public life, the 1988 constitution provided an opportunity structure for a major increase in judicial power.51

Judges utilized these new opportunities to expand their influence. In time, the combination of little oversight and expanded scope of activity led to increasingly judicialized politics.52 This naturally produced demands for greater accountability. Many academics and even judges (p.116) criticized the politicization of the judiciary in Brazil. Although there was agreement on the diagnosis, there was controversy over the best remedy to enhance accountability. Some associated the judicial council with the dictatorship; indeed, this was likely the reason for its abolition in 1988.53

A 2004 constitutional amendment introduced a new judicial council (Conselho Nacional de Justiça) with a very different composition than its predecessor: nine judges, two prosecutors, two lawyers, and two laymen appointed by the legislature.54 The competences of the new council include not only disciplinary action, as with the previous CNM, but also oversight of the budget and administrative matters (for example, providing statistics about the workload and productivity of the judiciary).55

The politics of the adoption are telling. It was initially proposed by a member of the then opposition in the year 2000. The proposal did not see the light of day, however, until the election of Lula de Silva to the presidency in 2003. Incoming politicians may feel the need to impose greater discipline on the judiciary, particularly if it is seen as being aligned with their opponents; more generally, changes in power can lead to efforts to institutionalize judicial independence so as to provide insurance for those who are likely to lose in future rounds.56 One can interpret the creation of the new Brazilian judicial council from either perspective. The new left coalition may have believed that the unconstrained judiciary was more likely to support their political opponents and thus used the council to discipline the judiciary. Alternatively, the coalition may have wanted to institutionalize an accountable independent judiciary to make it more viable for the long term, since a system of alternating parties seemed to be developing.

As with so many other judicial councils, there has been some tinkering with the model as Brazil seeks to calibrate judicial accountability and independence. In 2009, a constitutional amendment removed the minimum and maximum age limits for members of the council and clarified that the president of the Supreme Federal Tribunal would head the council.

The Brazilian story illustrates that there is no necessary connection between judicial councils and judicial independence. Though formally designed to provide the appearance of independence, the 1977 version of the judicial council did little to constrain potential military interference with the courts. Indeed, judicial independence was in one sense greatest between 1988 and 2004, when judges enjoyed a vastly expanded domain of governance but had little oversight. The 2004 reforms are a promise of a strong but politically accountable judiciary. It remains to be seen, of course, if this will materialize.

(p.117) Israel

In Israel, judges are appointed by a mixed council established under the Basic Law on the Judiciary, passed in 1984.57 Under that system, new justices are chosen by a nine-member panel, which includes two government ministers, two members of the Knesset, two bar association representatives, and three sitting justices, including the court president.58 The judges, although a minority, dominate the process in practice, and a new justice has never been chosen over the objection of sitting justices.59 This is the paradigm of a self-regulating, strong judiciary, even though judges are not the majority on the council. Professor Ran Hirschl convincingly argues that the creation of the entrenched judiciary, like other steps taken in the 1990s to constitutionalize certain policies, reflected the desire of a powerful but declining “hegemonic” group to ensure that their policies would survive their electoral losses.60 Essentially, the country’s politics were dominated into the 1970s by a set of secular Jews who were of European descent. But from that point, the gradual rise of religious parties, Jews of Middle Eastern descent, and later Russian immigrants threatened the political status quo. Hirschl argues that judicial empowerment and the creation of rights served to preserve the power of the hegemonic group after its electoral defeat. The inclusion in this set of reforms of a judicial council to enhance independence fits our overall story of councils as tools for increased judicial autonomy.

As our framework suggests, the power of the judiciary has led to calls for greater accountability. Observers date the origin of increasing judicialization to the late 1980s.61 Judicial activism by the Supreme Court under retired president Aharon Barak (who headed the body from 1995 to 2006) has prompted fierce debate over whether the system needs revision.62 In 2000, Israel created a committee to revisit the system of appointing judges, but it proposed only modest changes, such as making the nominations more transparent.63 Many believe that the Israeli Supreme Court has been too activist, and we have begun to observe renewed calls for structural reforms to rein in the judiciary.64 In January 2012, the Knesset passed the so-called Grunis Law, which changed the terms of judicial selection. Before 2007, Israeli law did not limit the term of the president of the court, but in that year, the Courts Act was amended to set a maximum of seven years, with a minimum of three years of eligibility before reaching the mandatory retirement age required for appointment. The latter provision was revoked in the 2012 reforms, thus allowing the Judicial Selection Committee (JSC) to (p.118) appoint a supreme court chief justice with only two years remaining until retirement.65 This paved the way for the February 2012 appointment of Justice Asher Grunis, who was seen as conservative and opposed to intervention in Knesset and government affairs.66

Another set of proposals has sought to reduce the judicial dominance of the JSC. In October 2013, Prime Minister Benjamin Netanyahu’s coalition attempted to pass a series of bills to weaken the JSC. One of the bills proposed the president of the supreme court be elected by the Knesset itself, instead of being determined by seniority among members of the court. Another bill suggested replacing two supreme court members on the JSC with a retired district court judge chosen by the heads of the district courts and an academic chosen by the prime minister, leaving the supreme court with just one vote.67 In January 2014, the Knesset passed a law ensuring more gender equality on the JSC, reserving four out of nine seats for women.68 These bills and proposals have sought to rein in what is essentially a self-governing judiciary through changing the composition and accountability of the council.

France

The French approach to the organization of judicial councils has been identified by many as ideal.69 The French judicial council, the Conseil Superieur de la Magistrature (CSM), was created after World War II in 1946, when the Constitution of the Fourth Republic established a council headed by the president of the republic with the minister of justice as its vice president.70 The creation of the Fifth Republic in 1958 reinforced the power of the president.71 The constitution, adopted by referendum, led to some reforms in the judicial council, namely in terms of the composition of its members. The president of the republic and minister of justice remained the president and vice president of the council, respectively, and nine members were to be appointed by the president.72 Until the 1990s, the powers of the council were basically limited to the nomination of high level magistrates, and the council was influenced by the president of the republic and by senior judges. Senior judges played a very significant role in determining the careers of junior judges. By the early 1990s, the judicial council was facing serious criticism for being dominated by the interests of the executive and for excluding junior judges.73

The Constitutional Reform (Loi Constitutionelle) in 1993 and Constitutional Amendment (Loi Organique) in 1994 brought changes in terms of membership, method of appointment, powers, and operating (p.119) procedures of the council. Among the main changes were the election of magistrate members of the council; the creation of two “formations” or committees, one with jurisdiction over the judges (siège)74 and the other over public prosecutors (parquet); the appointment of four members common to both formations by the “high authorities” of the state;75 the election of the other twelve members (six in each formation) by the judiciary; and the allocation of new competences related to the nomination of presidents of the Tribunaux de Grande Instance. Although the French Constitution refers to the existence of a judicial council and its composition, many details of the body are regulated by ordinary legislation.76

The reforms in the 1990s were clearly driven by political events that have empowered the judiciary. Generally, the Fifth Republic had maintained the traditional principles of the French judiciary—namely, its subordination to the executive and the legislature, and individual and collective judicial self-restraint (characterized by docile compliance with the doctrines of state supremacy and political sovereignty). However, there were some pressures on the system beginning in the late 1960s and early 1970s.77 The consolidation of judicial review by the Constitutional Council in the mid-1970s had a major and enduring impact. The sharp increase in litigation, pushed by the criminalization of many activities and the extension of the scope of application of the European Convention of Human Rights, increased the influence of the French judiciary.78

Several political scandals gave the judiciary important influence over politics. France, lacking a history of well-known famous judges, was now faced with a new kind of celebrity.79 Judges who were motivated and willing to investigate corruption scandals and to confront political pressures became heroes of sorts.80 It is clear, nevertheless, that many of these affairs were pursued by individual judges, while the French judiciary as a whole remained very self-restrained.81

It is possible that divided government, known as cohabitation,82 weakened the French executive, as the powers of the minister of justice in relation to the judiciary were reduced and the council’s powers have increased.83 French politicians, however, retain a good deal of influence over the judiciary, especially compared to their counterparts in Spain and Italy.84 On several occasions, different ministers of justice have come into conflict with the judiciary “when they have tried to hush up ‘affairs’ linked to their respective parties.”85 As the political system became more competitive in the 1980s and early 1990s, pressure built for judicial reforms that ensured more independence. Nevertheless, the involvement of high-profile politicians in scandals and the increasing prominence (p.120) of judges and judicial review have initiated a debate about the lack of external accountability of the judiciary. According to Valéry Turcey, a member of the CSM, the increasingly prominent role of the judiciary in French society was reflected in large debates about the role of the CSM in particular.86

In 2008, then president Nicolas Sarkozy announced plans to further reform and streamline the French judiciary, which were adopted into law that July.87 These reforms expanded the nonjudicial members so that judges and prosecutors became a minority. The law also increased the council’s power, granting the prosecutors’ division the right to give its (advisory) opinion on all appointments, including for general prosecutors with the appellate courts and the Cour de Cassation.88 Further, any citizen who deems that, in the course of proceedings in which she was involved, a judge has behaved in a way that may require disciplinary sanctions, now has the right to file a complaint with the CSM directly.89 Further judicial reforms in 2010 prompted new protests from the judiciary.

The long French tradition of hostility to an independent and powerful judicial branch has no doubt played a role in keeping France from shifting to full judicialization of public policies and hence led to increased control over judicial behavior.90 We observe continued willingness to tinker with the council to ensure accountability to the political system.

Italy

Although it had been approved after World War II and envisaged in the Italian Constitution of 1948,91 the Consiglio Superiore della Magistratura (CSM) was not officially created until 1958 and fully operational until 1959.92 The Constitution defines the existence, composition, and tasks of the CSM, but it also states that rules governing the judiciary and the judges are laid out by ordinary law.93 Two-thirds of the membership of the council were magistrates, elected by their peers at various ranks, with the remaining members being appointed by Parliament.94 According to the Italian Constitution, the council is in charge of the employment, assignment, transfer, promotion, and disciplining of judges.95 The Constitution pays special attention to the autonomy and independence of the judiciary, in reaction to executive dominance during the Fascist period. The Italian judicial system is notable for its near absolute independence, in which the CSM controls virtually all aspects of judicial appointment and the conditions of the judicial career.96 The balance of (p.121) power within the CSM is clearly in the hands of the judiciary, and as we explain below, because the internal hierarchy of the judiciary has largely been undermined, all decisions on the status of magistrates are made by the CSM.

The Italian story is one in which judges gradually dismantled the classical hierarchical structure of the civil law judiciary. Beginning in the 1960s, judges formed unions, demanding better conditions and freedom from constraints imposed by higher levels of the judiciary. This gradually led to a removal of internal controls. The dismantling of the traditional hierarchy was reinforced by several reforms that took place between 1963 and 1979. Between 1979 and 1992, the role of the CSM was consolidated, with the unions assuming an increasingly important role in determining its members.97 Although in theory the CSM was set up to ensure a certain level of consistency within the judiciary, the quality of judges varied widely. Judicial unions demanded a new “automatic promotion” doctrine established in the 1970s. The CSM’s professional evaluations of the judges were of little significance because they were always positive, and promotion became essentially automatic, even to the highest ranks of the judiciary, with no relationship to actual vacancies.98 This meant that every judge could gain the benefits of higher office (even if in fact they continued to occupy lower offices) without being assessed for quality. Salaries were high regardless of skill.99 With no quality control, the incentives for judges to contribute to collective reputation broke down. Rather than invest in quality, judges spent energy cultivating personal ties with those who controlled promotions and, if ambitious, seeking to gain membership to the judicial council. Because these positions are elected by the judges themselves, they result in a good deal of investment in individual reputation by those who seek power within the judiciary. But they have led to an emphasis on connections over quality.

All this resulted in an internal fragmentation of the judiciary that further empowered the associations. The formalist Supreme Court was virtually replaced by the judicial associations in negotiating with politicians, these associations being more activist and less low profile than the traditionalist Supreme Court. With time, the relationship between the judiciary and the politicians changed. The traditional political system where there was a natural friendship between the highest ranks of the judiciary and the executive was progressively replaced by a direct connection between political parties and judicial associations.100 Judicial investigations into several scandals involving businessmen, politicians, and bureaucrats marked the period from 1992 to 1997, (p.122) raising questions about the accountability of judicial powers.101 Several Italian judges fighting corruption and organized crime became well-known public figures, including antimafia judges like Rocco Chinnici, Giovanni Falcone, and Paolo Borsellino, and anticorruption judges like Antonio Di Pietro, Francesco Saverio Borrelli, Ilda Boccassini, Gherardo Colombo, and Piercamillo Davigo.102 Some judges even launched political careers.

Public debates began to grow, centered on the appointment of judges and the organization of the judiciary, with the aim of preventing runaway judges from conducting overzealous prosecutions. As a result, the composition of the council was altered in 2002. The total number of members was reduced from thirty-three to twenty-four. In addition to sixteen ordinary judges and prosecutors chosen from various levels in the hierarchy, eight university law professors and lawyers with a minimum of fifteen years of experience in the legal profession were appointed by the Italian Parliament.103 In 2007, the CSM implemented a law passed in 2006 (and amended again by law no. 111/2007), providing for all magistrates to be subjected to an assessment procedure every four years until they reach the twenty-eighth year of service, after a maximum of seven assessments.104 Consequently, high-ranking positions, which had been permanent since the CSM came into being, have now become temporary and subject to periodic scrutiny.105

The Italian case is similar to the French case, although the Italian council is more dependent on the executive, with narrower competences, and reflects relatively slower decline of the influence of judicial hierarchy. Both cases fit well into our dynamic model, which first predicts excessive politicization as a result of granting extensive independence to the judicial power and next predicts that serious accountability issues will be raised once judicialization of party politics becomes notable (in both Italy and France, due mostly to political scandals). New judges with media attention (Garzón in Spain, Jean-Pierre in France, and Di Pietro in Italy) have pushed judicialization of politics as never seen before in these countries. Thus, in the immediate future, the problem will be the extent to which the judicial agenda is sustainable once it does not coincide with the media agenda.

The Netherlands

The Netherlands’ model has differed from that of France and Italy. The government has recently introduced important reforms to ensure more transparency and accountability, but these did not result from (p.123) high-profile political scandals. Historically, the Dutch judiciary has been very restrained; judicial review doctrines in the Netherlands were similar to the British principle of parliamentary sovereignty. But constitutional reforms in 1953 and 1956 paved the way for more judicial activism. The purpose of these reforms was to accommodate the developments in European Economic Community law at the time, and the consequences were far-reaching. As a result, the main source of judicial activism has been the enforcement of the European Convention on Human Rights.106

The selection of judges in the Netherlands combines the appointment system typical of common and civil law: half of the judges are young university graduates and the other half experienced members of the legal profession.107 The Ministry of Justice shares the power of selecting the members of the judicial selection boards with both the judiciary and the legislature.108

The judicial system in the Netherlands was substantially reformed in January 2002. A significant change was the creation of the Council for the Judiciary (Raad voor de Rechtspraak),109 a committee primarily responsible for organizing and financing the Dutch judiciary. However, these roles of the council are limited by the Dutch Supreme Court (Hoge Raad) and the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak Raad van State). And while the council has only five members, it maintains an office to assist it in its activities that employs around 135 people.110 The acts of the council are not subject to any control. The council was granted certain administrative powers previously in the hands of the Ministry of Justice, in an effort to reinforce the independence of judiciary authority with respect to the legislature, the Parliament, and the government.111

The Dutch case is a good example of a judicial system in which no serious concerns about excessive politicization have arisen, and yet certain reforms have sought to introduce more accountability and better allocation of resources. Perhaps this results from its proximity to several other jurisdictions that are deeply engaged in judicial reform.

The United Kingdom

In the United Kingdom, the Act of Settlement 1701112 confirmed the independence of the judiciary, and since then, strong norms of judicial immunity have made the removal of judges quite difficult. However, appointments remained in the hands of the lord chancellor.113 The traditional view was that the lord chancellor represented the judiciary in the government and the government in the judiciary and hence was a (p.124) unique office well placed to represent the view of each side.114 Although the lord chancellor’s position became an exclusively political office, by convention, he was drawn from the ranks of senior lawyers. The process of judicial selection increasingly emphasized professional experience; few judges appointed to English higher courts had any political experience.115 Although the independence of the English judiciary was not perceived to be significantly affected by this arrangement, some lord chancellors have been seriously criticized in the press for having policies that were too politically oriented.116 At the same time, the senior judiciary sitting at the House of Lords participated in lawmaking, and so the roles of legislator and judge were combined.117 England’s version of the separation of powers did not challenge the combination of roles in a single office. The English judiciary was never perceived as a separate branch of government in the American sense.118 The lord chancellor could sit in on cases, and the last one to do so (at the time of this writing) was in 2001.119 In practice, however, the system that developed under the lord chancellor created a unified and hierarchical judiciary. The chancellor became perceived as the guardian of judicial independence and a voice of the senior judiciary, rather than a constraint on it. Such structure did not promote diversity of opinions, since someone who did not conform to the views of the establishment was not likely to be chosen by the lord chancellor.120 In this sense, the judiciary became self-governing.

The increasing importance of the English judiciary reflected changes in the political environment after the 1960s. These changes include the expansion of the welfare state, the Labor government’s creation of a specialized Industrial Relations Court under Edward Heath, and the arrival of Margaret Thatcher and her legal reforms.121 Europe also played an important role in transforming British public law. European integration in 1973 and the development of EU law have progressively empowered the English judiciary to review legislation in the light of EU directives or regulations, sometimes against the will of the government. This has contributed to a bolder judiciary, confronted with the enlargement of the scope of judicial review and power over public policy.122 Senior judges challenged the doctrine of parliamentary sovereignty.123 Furthermore, the new role of the judiciary in the face of the domestic and international challenges of the late 1970s and 1980s raised concerns about the extent to which the English judiciary was up to the tasks expected of it.124 This led to gradually increasing demands for accountability in a self-regulating, independent judiciary.

Several issues in the late 1990s brought these tensions to a head. Sentencing policy came under scrutiny in the aftermath of the passage of the (p.125) Human Rights Act 1998.125 The Pinochet case in 1999 raised serious questions about the wisdom of having the most senior judiciary sitting in the House of Lords.126 In addition, Europe played a major role in encouraging a transformation of the institutional structure. In the 1990s, the Council of Europe encouraged eastern European countries to enhance judicial independence by reducing the role of politicians, but the UK system remained a stubborn anachronism in that the head of the judiciary was a government minister. Then the case of McGonnell v. UK127 in the European Court of Human Rights, regarding the Bailiff of the island of Guernsey, gave impetus to movements to reform the judicial structure. In that case, the court decided that a judge who also plays an administrative role violates Article 6 of the European Convention of Human Rights, which requires a fair trial. Although in England and Wales, the lord chancellor traditionally avoided sitting on cases where there might be a conflict of interest, the European Court of Human Rights applied a somewhat formalist approach, finding that theoretical blending of functions violated norms of judicial independence.128 The formal separation of powers, it seems, is now a constitutional requirement in Europe.

More generally, judges’ extrajudicial activities, including leading commissions and inquiries and producing reports, have been the source of controversy. In many important cases, the appointed judges encountered politically sensitive issues. Judge-headed commissions included those on the Profumo affair in 1963,129 industrial relations in Northern Ireland in the 1970s,130 the Nolan committee on standards in public life in the aftermath of sleaze scandals (1994–95), the Scott inquiry on exports of military equipment to Iran and Iraq (1995–96), and the Hutton inquiry on the death of an employee of the Ministry of Defense and the weapons of mass destruction in Iraq (2003–4).131 We have seen the risks of judicial involvement in extrajudicial functions in chapter 3.

From a reputation perspective, in the United Kingdom we observe a small judiciary that had, through internal self-governance, developed over many centuries a powerful collective reputation for independence. External developments, however, put greater pressure on the system as judicial decisions began to play a more prominent role in public life. The long-standing reputation of judicial independence led, as our dynamic model suggests, to greater demands for judicial involvement, including in extrajudicial activities that place individual judicial reputations at risk. In 2003, Prime Minister Tony Blair’s government announced its intention to alter the system for appointing judges in England and Wales.132 The political forces were frustrated with the incumbent lord chancellor, who opposed judicial reform, and abruptly dismissed him in 2003. (p.126) Two goals justified the reform: improving judicial independence and enhancing accountability and public confidence in judicial offices.133 In fact, Lord Falconer, the new secretary of state for constitutional affairs, declared that it was no longer acceptable for the executive branch to control judicial appointments. Accordingly, he revealed the intention to establish an independent Judicial Appointments Commission (JAC), responsible for recommending candidates for judicial appointments on a more transparent basis and based solely on merit.134

The Constitutional Reform Act 2005135 introduced several substantive changes in the English and Welsh judiciaries, including a statutory prohibition on government members seeking to influence judicial decisions. Two reforms were especially far-reaching: First, the act abolished the centuries-old judicial role of the lord chancellor, the most senior judge in England and Wales, and transferred his judicial functions to the president of the courts of England and Wales (formerly known as lord chief justice of England and Wales).136 (The lord chancellor retains a role in judicial management.) Second, the act created a new Supreme Court, consisting of twelve judges independent of and removed from the House of Lords, with its own independent appointment system.137

Alongside the JAC,138 the Constitutional Reform Act of 2005 established two new bodies: the Judicial Appointments and Conduct Ombudsman (JACO)139 and the Directorate of Judicial Offices for England and Wales (DJO). The JAC is composed of fifteen commissioners drawn from the judiciary, the legal profession (one barrister and one solicitor), the lay magistracy, and the lay public. The chairman of the commission is required to be a lay member. In 2007, further reforms established a Ministry of Justice, which would incorporate some of the lord chancellor’s functions and be responsible for criminal justice policy, among other areas. Yet more reforms occurred in 2008 and 2013, modifying the composition of the JAC slightly and ensuring that a lay member would head the committee to select the president of the Supreme Court. The purpose of this latter change (in the Crime and Courts Act 2013) was to guard against the perception of the panel selecting judges on the basis of their own preferences.

The constitutional reform emerged in a context of enhanced influence of the judiciary in Britain. The Human Rights Act of 1998 has allowed the courts to review acts of Parliament for the first time ever (by assessing compliance with the European Convention of Human Rights, for all legislation passed after and before 1998).140 Although courts tend to follow a general doctrine of deference to the legislature, the Human Rights Act of 1998 considerably increases the weight of external audiences.141 (p.127) Some of these behavioral changes were already being developed since the European Community Act of 1972.142 The fine line between law and politics has been blurred since the late 1970s, straying from the traditional arrangement and posing a serious problem from the perspective of the reformers.143

It seems the most important issue in the United Kingdom discussion has been enhancing accountability through more formal processes. As predicted by our model, the growth of judicial review and the perception that judicial interference in politics has significantly increased has raised concerns about accountability.144 One concern was the lack of minorities and women in the bench, which suggests a sense of gender and racial bias in the appointments mechanism.145 There has been a general feeling that a small clique from Oxford and Cambridge dominates the appointments.146 Furthermore, there have been indications of personal and corporate bias in judicial profiles.147 We observe defensive actions on the part of the judges, as when the lord chief justice argued that the JAC, “like a recruitment agency, must respond to the needs of the client’s business; and those needs must be judged and articulated by the business, not the recruitment agency.”148 But we also see continued pressure to open up. In 2010, an advisory panel to the lord chancellor proposed a shift to a judicial career, with the aim of achieving greater diversity within the judiciary. Only later was it clarified that this was not meant as a call for a career judiciary, where judges are appointed after graduating from university and trained for the bench, but rather as a call to the legal profession to bring about further changes in its composition.149 The Parliamentary Joint Select Committee expressed its disappointment with the lack of measurable progress toward increasing diversity within the judiciary. While more women, black, and minority candidates are in fact applying for judicial roles than before the JAC, and more women are being selected (with five women high court judges appointed between April 2008 and June 2009, the highest number ever), the number of successful minority candidates has remained constant and rather low.150

Our model predicts that reforms aimed at improving accountability might sacrifice independence. Not surprisingly, in the United Kingdom, the extent to which current reforms actually improve judicial independence seems to be a matter of debate.151 The formalist version of independence would view the restructuring of the office of lord chancellor as an improvement, but many members of the senior judiciary were opposed to reform and sought to ensure that their independence was retained.152

(p.128) What is clear is that the judiciary now is subject to much greater scrutiny from external audiences. The traditional audiences were other judges, in the self-policing clubby world of the senior judiciary and the political forces that appointed the lord chancellor. Today, a wide range of political and administrative actors, including the rump office of the lord chancellor, the new Supreme Court and Lord Chief Justice, a new Judicial Office, the Court Service, the Judicial Appointments Commission, a Judicial Appointments and Conduct Ombudsman, and an Office for Judicial Complaints, as well as a parliamentary commission, all play a role in managing and interacting with the judiciary. For example, Professor Robert Hazell and his team counted 148 appearances by 72 judges before 16 different parliamentary committees from 2003 to 2013.153 Multiple audiences might provide the judicial agents with freedom to maneuver but also create much more scrutiny. We expect that the public will be the ultimate beneficiary in that judges will seek to cultivate public opinion with well-reasoned, prominent cases.

The Spread of Councils

One of the interesting things about judicial councils is that they have spread all over the world. The French-Italian model has been exported to Latin America and other developing countries.154 One motivating concern for adoption of councils in the French-Italian tradition was ensuring independence of the judiciary after periods of undemocratic rule. To entrench judicial independence, most of these countries enshrined a judicial council in their constitutions.

A major factor was that the World Bank and other multilateral donor agencies have made judicial councils part of the standard package of institutions associated with judicial reform and rule of law programming.155 Efforts to produce model “best practices” have ensured much replication and refinement of the judicial council model. For example, the Association of European Magistrates for Democracy and Freedom (MEDEL) produced a draft additional protocol to the European Convention on Human Rights called the Elements of European Statute on the Judiciary (known as the “Palermo Declaration”). This model statute states that there shall be a supreme council of magistracy, composed of judges and also including appointees of the parliament.156 The model statute also declares that the supreme council will produce a budget for the courts; manage their administration; and control recruitment, assignment,157 and discipline of judges,158 thus guaranteeing judicial independence. The Council of Europe made a similar recommendation in a (p.129) document published in 1994.159 Other international organizations have followed suit.160 The next section analyzes the factors behind the adoption in greater depth.

Empirical Data on Councils

Why Do Countries Constitutionalize Judicial Councils?

We have developed a small database on judicial councils. The sample consists of the councils in 121 different nation-states, listed in appendix B. Data were gathered for the most recent iteration of the judicial council available. (The omissions are in no way related to the explanatory variables.) For ninety-three countries, the judicial council is mentioned and described in the country’s constitution, so we gathered our information from there.161 For twenty-eight other countries, the constitution provides no detail on the composition and powers of the judicial council. In these countries, the judicial council is left to ordinary law. We gathered data on these countries from an array of sources, including the 2002 study of Linn Hammergren,162 the Comparative Constitutions Project,163 and a number of country-specific sources. Figures 4.2a and 4.2b provide some indication of the trends over time and space.

Note that the issue of whether or not a council is constitutionalized is itself important. If the composition and powers of the council are left to ordinary law (as they are in twenty-eight countries in our dataset), they are subject to enhanced manipulation by the government and legislature and hence have a weaker guarantee of independence. Presumably those councils lean more toward the accountability pole than the independence pole. Conversely, when the council structure is entrenched in the constitution, it is beyond the reach of ordinary politics and hence likely to reflect a desire for greater levels of judicial independence and insulation. In the results that follow, we find systematically lower independence scores for countries with nonconstitutionalized councils.164

What predicts whether a country will constitutionalize a judicial council or not? Casual observation of figure 4.2 suggests both a time trend and some regional variation. These factors affect all countries and so are a bit different from the local political variables that we have been emphasizing in our account. Ideally, we would like to understand the relative importance of these factors with the local conditions that might drive demand for judicial councils. (p.130)

The Selection and Monitoring of Judges: The Spread of Judicial Councils

4.2a Constitutionalized judicial councils over time

Source: Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org

The Selection and Monitoring of Judges: The Spread of Judicial Councils

4.2b Constitutionalized judicial councils by region, 2010

Source: Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org

(p.131) We run a series of fixed-effect probit models in which the dependent variable is the “onset” of a judicial council, meaning the first year in which it is adopted.165 The unit of analysis is the country-year. As predictive factors, we include region, the level of democracy (as measured by the POLITY2 index), wealth, and whether or not the country is a common law jurisdiction.166 We model time by looking at the duration between the country’s first constitution and the year in which it adopts a judicial council. (As is standard, we include squared and cubed terms in modeling duration.) Our hypothesis is that, if there is indeed a time trend, countries will be more likely to adopt a judicial council, the longer they have been “waiting” to do so. In each regression, we include fixed terms for countries, which of course will capture the region the country is in.

We are particularly interested in whether variables that predict political motives for expanding judicial power play a role in driving the adoption of judicial councils. We might predict that more powerful judiciaries—say, those with the power of constitutional review—would be greater targets for political control. After all, there is little reason to adopt a new institution to manage an unimportant set of government actors. We also include an indicator of judicial independence drawn from recent work by Professors Drew Linzer and Jeffrey Staton, lagged in one-, five-, and ten-year periods (in models 1, 2, and 3, respectively).167 If judicial councils are always designed to enhance judicial independence, we should see a negative correlation between judicial independence at t-1 and the adoption of a council. Conversely, if judicial councils are instituted to control the judiciary, we should see a positive correlation: more independence at t-1 will correlate with the adoption of a council at time t.

Our results—presented in table 4.3—confirm some of our hypotheses. We find a strong correlation between the prior presence of judicial review and the adoption of a council. Judicial councils are adopted when judges have formal power. But this correlation disappears when we lag the variable by five and ten years. We interpret this to indicate that the adoption of a judicial council is likelier when judicial review has itself been recently adopted and that both trends are codetermined by other factors. Figure 4.3 illustrates the effect graphically.

We do not observe any significant correlation between prior levels of judicial independence and council adoption. This is consistent with, or at least does not disconfirm, our theory that judicial councils are sometimes adopted to enhance independence while other times designed to enhance accountability. It is, of course, also possible that the councils (p.132)

Table 4.3 Probit models predicting constitutional adoption of a judicial council

Variables

(1)

(2)

(3)

(1) 1-year lag

(2) 5-year lag

(3) 10-year lag

Democracy (POLITY2)

0.169**

0.143***

0.151***

(0.0785)

(0.0402)

(0.0454)

GDP per capita

−1.73e−06

−2.15e−06

−2.44e−06

(1.40e−06)

(2.32e−06)

(2.46e−06)

Common law

−5.393

−10.89*

−8.780

(3.300)

(5.890)

(6.003)

Time from first constitution

0.124**

0.121

0.150

(0.0589)

(0.0856)

(0.135)

Time squared

−0.000685

−0.000514

−0.000964

(0.000880)

(0.00125)

(0.00175)

Time cubed

1.45e−06

1.46e−06

2.69e−06

(3.12e−06)

(4.03e−06)

(5.57e−06)

Judicial review at t-1

4.586***

(1.128)

Judicial independence at t-1

−1.619

(2.844)

Judicial review at t-5

0.0533

(0.421)

Judicial independence at t-5

−2.262

(1.676)

Judicial review at t-10

0.348

(0.577)

Judicial independence at t-10

−0.805

(2.127)

Constant

−7.029***

−5.052**

−5.726*

(2.041)

(2.188)

(3.427)

Observations

1,158

997

823

All regressions are fixed-effects probit models, with fixed effects for countries.

Robust standard errors in parentheses.

(***) p<0.01,

(**) p<0.05,

(*) p<0.1

are simply adopted as part of a kind of trend or fashion, like many other constitutional institutions. Either way, the claim that judicial councils always enhance independence does not seem to be supported by the evidence.

Our results also show that democracy is an important predictor of judicial councils, which is hardly surprising because authoritarian regimes have many collateral institutions for controlling judges. In unreported specifications, we examine more precisely the political incentives for the adoption of judicial councils. A line of literature has shown that when a dominant party is in control of the political system, there is little incentive to empower the judiciary; conversely, where multiple parties vie for power, there is a greater incentive to adopt powerful and (p.133)

The Selection and Monitoring of Judges: The Spread of Judicial Councils

4.3 Effect of prior judicial review on council adoption

independent courts.168 If councils indeed enhance independence in all cases, we should see that demand for “political insurance” will correlate with the onset of a council. But we find no such relationship in multivariate models. Finally, the common law does not predict the adoption of judicial councils.169

What Features Do Judicial Councils Have?

We next wish to examine the particular features of judicial councils. First, we developed a simple ordinal index of powers/competences (“power index”). Each judicial council was rated depending on the extent of its competences. A council that had purely administrative or housekeeping functions council was coded as 1 (n = 8), and a council with a role in appointment, transfer, and discipline of judges was rated a 3 (n = 68). The intermediate rating of 2 was given to councils that had a limited role either because they could appoint but not discipline judges or because their role was limited in performance-relevant variables (n = 34). For example, a council that only had a role in recommending judges for appointment or minimal role in discipline would be rated a 2. We also include information on countries without judicial councils, an important control group. These are denoted with a score of 0 on the power index. A complete coding of countries with judicial councils is in appendix B.

Our first prediction was that competences, as captured in the power index, would vary systematically depending on the institutional problem being faced. Extensive competences correlate with stronger councils. (p.134) Stronger councils, however, can reflect demands for strong political control and accountability—or for judicial self-regulation effectuated by capture of the council. Sorting out which motivation exists in particular contexts is difficult. To evaluate this issue, we use the working assumption that a majority of judges on the council indicates a greater degree of judicial self-regulation.

When judges have extensive power, judicialization of public policy is likely to follow. In such environments, the judicial council may reflect pressures for greater accountability. We expect this may be more likely in common law countries as well as any country in which ordinary judges can engage in the power of judicial review. We might also observe that, in such contexts, judges may be able to secure a majority of the positions on the judicial council. In other situations, however, accountability concerns might lead to efforts to reduce the number of judges.

Composition also interacts with competence. To understand the relationship between composition and competence, we want to understand whether an assignment of more extensive powers is associated with a higher percentage of judges on the council. We run a series of regressions in which the dependent variables are, first, our four-point power index, and, second, the percentage of judges on the council. These two things, competence and composition, are typically decided together at the time of institutional design, though each may be subject to later tinkering as new problems arise. For each of our dependent variables, we run two models: a baseline model in which the only predictors are common law, democracy, presence of judicial review, and level of judicial independence, along with regional dummies (with Latin America as the omitted category), and an additional model with the other dependent variable as an additional predictor. That is, we use the percentage of judges to predict powers and the power index to predict the percentage of judges. This will help us understand if the two design features go together. We use an ordered probit model for the power index, which is appropriate because it is an ordinal variable, and an ordinary least squares regression to predict the percentage of judges on the council.

Our results, presented in table 4.4, confirm many of our hypotheses: we find that stronger councils are associated with judicial review but not judicial independence (column 1). The common law result is unstable: when we add the percentage of judges as a predictor (column 2), we lose statistical significance and the sign switches. In examining the predictors of composition on the council (columns 3 and 4), we observe that judicial independence measures are negatively correlated with more (p.135)

Table 4.4 Predictors of judicial council power and composition

Dependent variable

(1)

(2)

(3)

(4)

Council powers index

Council powers index

Percentage of judges on council

Percentage of judges on council

Model

Ordered probit

Ordered probit

OLS regression

OLS regression

Democracy (POLITY2)

0.0201

0.0225

−0.00635

−0.00704

(0.018)

(0.0262)

(0.00546)

(0.00538)

Common law

0.442*

−0.473

−0.0513

−0.0371

(0.250)

(0.436)

(0.0840)

(0.0828)

Judicial independence

0.0003

−0.000419

−0.00408*

−0.00404*

(0.009)

(0.00999)

(0.00207)

(0.00203)

Judicial review

0.553**

0.105

−0.0151

−0.0233

(0.264)

(0.385)

(0.0770)

(0.0758)

Percentage of judges on council

1.228**

(0.532)

Judicial council power index

0.0591**

(0.0295)

Western Europe / North America

−0.0558

0.145

0.344***

0.331***

(0.473)

(0.607)

(0.116)

(0.114)

Middle East

−0.574

4.524

0.337*

0.294

(0.489)

(283.9)

(0.199)

(0.197)

South Asia

−1.226**

−1.139

0.650***

0.688***

(0.603)

(0.783)

(0.148)

(0.147)

East Asia

0.0469

0.922

0.287**

0.251**

(0.459)

(0.696)

(0.120)

(0.119)

Eastern Europe / Post-Soviet

0.0562

0.234

0.158

0.139

(0.435)

(0.588)

(0.115)

(0.114)

Sub-Saharan Africa

−0.322

0.562

0.158

0.131

(0.402)

(0.541)

(0.107)

(0.106)

Oceania

−0.633

0.168

0.111

0.114

(0.834)

(0.889)

(0.182)

(0.179)

Time

−0.000876

−0.00199

0.00116

0.00114*

(0.00275)

(0.00358)

(0.000700)

(0.000688)

Constant

−0.401

−0.810

0.324***

0.200

(0.412)

(0.533)

(0.107)

(0.122)

Observations

97

97

97

97

R2

0.326

0.357

Standard errors appear in parentheses.

(***) p<0.01,

(**) p<0.05,

(*) p<0.1

judges. At a minimum, this result should help debunk arguments that judicial majorities on the council are necessary for securing judicial independence. Instead, it seems like relatively dependent judiciaries are being rewarded for political loyalty with seats on the councils.

Columns 2 and 4 help us identify the relationship between competence and composition. It appears that greater competences are correlated with a higher percentage of judges on the council. Figure 4.4 captures the (p.136)

The Selection and Monitoring of Judges: The Spread of Judicial Councils

4.4 Relationship between judicial power index and change in percentage of judges on council

relationship graphically. Perhaps these councils are the ones in which the senior judiciary is given a powerful role in controlling lower court judges, on behalf of political principals. This is consistent with the argument of Professors Mark Ramseyer and Eric Rasmusen about the Japanese judiciary.170 Although the Japanese judiciary does not have a judicial council, it does feature extensive control of the lower judiciary by higher levels. Ramseyer and Rasmusen argue that this institutional configuration of hierarchical judicial control suits the politicians that run Japan. If the senior judges are loyal, they can be trusted with the task of governing lower judges.

Another interesting result comes from the regional variables. It appears as if there is a particularly South Asian style of judicial council—one with many judges but relatively few competences. East Asian and Western European councils are likely to have a higher percentage of judges than those in Latin America (the omitted category), where political configurations may be less stable.

In earlier work, we established that correlations between the presence of a judicial council and levels of judicial independence (using various measures available before the creation of the Linzer-Staton measure) were very low.171 One might think, however, that these results fail to specify the proper relationship between judicial councils and judicial independence. After all, if introducing a judicial council is supposed to enhance judicial independence, we would observe an improvement only some years later. We can explore this conjecture by looking at the (p.137)

Table 4.5 Predictors of judicial independence

Judicial independence

Judicial independence

Judicial independence

t+5

t+10

Years since first constitution

−.018 (0.005)***

−.015 (0.005)***

−0.016 (0.006)***

Onset of judicial council

−3.63 (1.48)**

−3.33 (1.54)**

−3.24 (1.57)**

Democracy

0.27 (0.04)***

0.25 (0.04)***

0.024 (0.042)***

GDP per capita

1.43e−07 (3.29e−07)

−7.48e−08

−1.27e−07

(3.56e−07)

(4.62e−07)

Constant

6.03 (0.56)***

5.65 (0.57)***

5.71 (0.58)***

Standard errors appear in parentheses.

(***) p<0.01,

(**) p<0.05,

* p<0.1

trend in judicial independence scores some years after the adoption of a judicial council. Judicial independence is generally improving around the globe, and there is also a trend toward adoption of judicial councils. Therefore, we need to control for time and for the impact of factors like democracy and wealth, commonly thought to be drivers of judicial independence. We estimate a series of ordinary least squares regressions, again using the Linzer-Staton metric of judicial independence in the year in which the council is adopted, then five and ten years later (see table 4.5).

Again, we observe that time and levels of democracy are important factors that correlate with judicial independence. Judicial councils tend to be associated with low levels of judicial independence, suggesting that they are intended to be part of the solution to the problem. We indeed observe that the negative relationship decreases over time, suggesting that, on average, judicial councils may improve independence over time. The effect is quite small, and the explanatory power of the models is low (with R2 only about 0.01).

The above results suggest that there is little if any evidence that judicial councils promote judicial independence. If they do so, the effect is small and takes many years to realize. Our argument is consistent with other recent studies. Stefan Voigt and Nora El-Bialy, using a forty-seven-country dataset produced by the European Commission for the Efficiency of Justice (CEPEJ) find that countries with judicial councils have judiciaries that are less efficient and resolve fewer cases than those without.172 Together with our analysis, this suggests that judicial councils are not a best practice, even if they are treated as such. To some degree, this may reflect that best practices are contingent on the institutional problem being faced.

(p.138) How then did judicial councils become a “best practice” in the first place? While we do not attempt a complete analysis, there is a hint about the motive in the recommendation of international organizations that judicial councils always have a majority of judges. This view implicitly assumes that the only threat to judicial performance is from outside the judiciary, particularly the executive branch. But our analysis of reputation and audiences suggests that sometimes judges will excessively value their internal audience to the detriment of their ultimate societal principal. Indeed, a recent study of Slovakia by David Kosar has indicated that a council headed by the Ministry of Justice may better establish checks and balances than one headed by the chief justice, particularly when the chief seeks to exercise dominant control over lower judges.173 Perhaps, then, a combination of armchair institutional reasoning by donors and interest-group activities by judges themselves best explains the spread of a new form. One can view the strong pressure from the European Union on Eastern European countries as a kind of alliance in which judges on both sides of the former Iron Curtain allied to empower themselves in the new institution.

Conclusion

Judicial councils are an important new phenomenon that has spread all over the world and become a global best practice, yet we know little about them and their consequences. The conventional wisdom is that they enhance judicial independence, but we are skeptical of this claim. From an economic perspective, councils are designed to resolve principal-agent problems. As an intermediate body between the principal (the public) and the agent (judges), the judicial council aims to reduce agency costs due to the possible capture by a minority that may distort the judicial process for its own purposes. From this point of view, a judicial council is an expert monitor designed to ensure accountability rather than independence.

We recognize that the diversity in council structures across countries reflects local conditions. We have canvassed institutional designs in both common law judicial appointment commissions, including the merit plans in the United States and the Canadian and British experiences, and civil law high judicial councils, including the French-Italian model. We have argued that the different designs aim at achieving the appropriate balance between independence and accountability in the face of two recurrent phenomena—the politicization of the judiciary (p.139) and the judicialization of politics—that are reflected in different degrees around the world.

Our empirical observation of patterns of institutional design show that competence and composition interact in complex ways to respond to particular institutional problems. We also found little evidence in favor of the widespread assumption that councils increase quality or independence in the aggregate. Therefore, we emphasize the complexity of the role of a judicial council and reject the simplistic view that importing or transplanting certain types of judicial council is likely to have a decisive impact on the quality of the judiciary. We thus reject the views of international organizations that assert that judges should always and everywhere form the majority of members on the council.174

Our framework also explains why it is that councils persist as institutions. Because they involve actors from multiple arenas, the councils themselves promise that no one institution can easily dominate the judiciary. The councils, once created, provide an arena for competition and the eternal struggle to calibrate independence and accountability. We thus predict that councils themselves will frequently become the targets of institutional reform, as examples from Italy, Brazil, and elsewhere demonstrate.175 We also can understand why they have been widely adopted, notwithstanding little support for claims that they enhance independence: councils allow a wide number of stakeholders to participate in discussions of judicial governance.

There is also a branding component to the spread of the institution. Judicial councils, in particular, are championed by donor organizations; for example, in Rumania, the adoption of a judicial council was a condition of accession to the EU.176 In Europe, an association of judicial councils has been formed. It seems that judicial councils may reflect the efforts of a kind of transnational movement, seeking to advance a particular model, regardless of whether or not they actually achieve their desired goals. Judicial independence, in this process, becomes an idea to be wielded in debates rather than a real tangible good.

Finally, we introduce the notion of the politically accountable but strong judiciary. In many ways, this ideal is more desirable than the conventional view that judicial independence is an unqualified good. Those who emphasize judicial independence too often do not articulate the need for accountability, which provides the crucial other side of the proverbial coin.

These findings have important implications for the ongoing debate on judicial appointments in the United States. Rather than assume that merit commissions, the American counterpart to judicial councils, always (p.140) enhance independence, scholars should conduct more thorough empirical research to understand the precise determinants of independence and accountability. Our case studies suggest that these determinants are highly context specific and not susceptible to one-size-fits-all solutions.

We have seen that judicial councils have become increasingly fashionable since the early 1990s, but they do not seem to provide universal solutions to the issues of finding the appropriate mix of judicial accountability and independence. While councils become managers of reputation, their skill in regulating judicial behavior varies widely. In some cases, they become loci of their own political conflicts, in which external and internal audiences compete over judicial management. As in so many areas of institutional reform, popular solutions sometimes generate their own set of problems. In chapter 5, we will turn to another increasingly popular mechanism, constitutional courts, and document the struggles they have with ordinary courts in the battle for reputation.

Notes:

(1.) There is a large body of literature on judicial independence and quality. See, for example, Richard Epstein, “The Independence of Judges: The Uses and Limitations of Public Choice,” Brigham Young University Law Review (1990): 827–55; Paul Fenn and Eli Salzberger, “Judicial Independence: Some Evidence from the English Court of Appeal,” Journal of Law and Economics 42, no. 2 (1999): 831–47; F. Andrew F. Hannsen, “Is There a Politically Optimal Level of Judicial Independence?” American Economic Review 94, no. 3 (2004): 712–29; Irving Kaufman, “The Essence of Judicial Independence,” Columbia Law Review 80, no. 4 (1980): 671–701; Daniel Klerman and Paul Mahoney, “The Value of Judicial Independence: Evidence from 18th Century England,” American Law and Economics Review 7, no. 1 (2005): 1–27; William Landes and Richard Posner, “The Independent Judiciary in an Interest-Group Perspective,” Journal of Law and Economics 18, no. 3 (1975): 875–901, doi:10.1086/466849; Ramseyer, “Puzzling (In)dependence of Courts”; Eric B. Rasmusen and J. Mark Ramseyer, “Judicial Independence in Civil Law Regimes: Econometrics from Japan,” Journal of Law, Economics, and Organization 13 (1997): 259–86; McNollgast, “Conditions for Judicial Independence,” Journal of Contemporary Legal Issues 15, no. 1 (2006): 105–27; and William H. Rehnquist, “Seen in a Glass Darkly: The Future of the Federal Courts,” Wisconsin Law Review 1993, no. 1 (1993): 1–12. For a more comparative perspective, see Josefina Calca de Temeltas, “Commentary: Comparative Constitutional Approaches to the Rule of Law and Judicial Independence,” Saint Louis University Law Journal 40 (1996): 997–99. On accountability, see Kosar, “Least Accountable Branch.”

(2.) Kurt E. Scheuerman, “Rethinking Judicial Elections,” Oregon Law Review 72 (1993): 459–85 (providing overview of selection mechanisms); “Judicial Selection Materials,” American Judicature Society, accessed February 28, 2015, (p.232) http://www.judicialselection.us/judicial_selection_materials/index.cfm.

(3.) See, generally, Kate Malleson and Peter H. Russell, eds., Appointing Judges in an Age of Judicial Power (Toronto: University of Toronto Press, 2006).

(4.) Malia Reddick, “Merit Selection: A Review of the Social Scientific Literature,” Dickinson Law Review 106 (2002): 729–45 (providing summary of empirical evidence); Luke Bierman, “Preserving Power in Picking Judges: Merit Selection for the New York Court of Appeals,” Albany Law Review 60 (1996): 339–58 (advocating merit system for New York); Norman L. Greene, “Perspectives on Judicial Selection Reform: The Need to Develop a Model Appointive Selection Plan for Judges in Light of Experience,” Albany Law Review 68 (2005): 597–609 (merit system superior); Steven Zeidman, “Judicial Politics: Making the Case for Merit Selection,” Albany Law Review 68 (2005): 713–21; Lawrence H. Averill Jr., “Symposium on Arkansas Law: The Arkansas Courts: Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas,” University of Arkansas Little Rock Law Journal 17 (1995): 281–327; Mark I. Harrison, Sara S. Greene, Keith Swisher, and Meghan H. Grabel, “On the Validity and Vitality of Arizona’s Judicial Merit Selection System: Past, Present, and Future,” Fordham Urban Law Journal 34 (2007): 239–63; Victoria Cecil, “Merit Selection and Retention: The Great Compromise? Not Necessarily,” Court Review: The Journal of the American Judges Association 39, no. 3 (2002): 20–28; Jason J. Czarnezki, “A Call for Change: Improving Judicial Selection Methods,” Marquette Law Review 89 (2005): 169–78; Lenore L. Prather, “Judicial Selection: What Is Right for Mississippi?” Mississippi College Law Review 21, no. 2 (2002): 199–207; Jona Goldschmidt, “Merit Selection: Current Status, Procedures, and Issues,” University of Miami Law Review 49, no. 1 (1994): 1–91 (providing extensive history of merit selection and arguing for the merit plan); Joseph A. Colquitt, “Rethinking Judicial Nominating Commissions: Independence, Accountability, and Public Support,” Fordham Urban Law Journal 34 (2007): 73–123; Mark A. Behrens and Cary Silverman, “The Case for Adopting Appointive Judicial Selection Systems for State Court Judges,” Cornell Journal of Law & Public Policy 11 (2002): 273–314 (arguing for appointment over election); Norman L. Greene, “The Judicial Independence Through Fair Appointments Act,” Fordham Urban Law Journal 34, no. 1 (2006): 13–34 (same); G. Alan Tarr, “Designing an Appointive System: The Key Issues,” Fordham Urban Law Journal 34, no. 1 (2006): 291–314 (same); Jeffery D. Jackson, “Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System,” Fordham Urban Law Journal 34, no. 1 (2006): 125–61; Steven P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” University of Chicago Law Review 62, no. 2 (1995): 689–794 (arguing that judicial elections undermine rule of law); Paul R. Brace and Melinda Gann Hall, “The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice,” Journal of Politics 59, no. 4 (1997): 1206–31.

(5.) See Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, “Professionals and Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary,” Journal of Law, Economics and Organization 26, no. 2 (2008): 290–336, who find that judges in partisan systems are more productive in terms of number of opinions but that appointed judges are cited more frequently.

(6.) Justice Sumption was judge of the Courts of Appeal of Jersey and Guernsey.

(7.) See Posner, Law and Legal Theory. See also Tom Bingham in Louis Blom-Cooper, Brice Dickson, and Gavin Drewry, The Judicial House of Lords: 1876–2009 (Oxford: Oxford University Press, 2009), detailing that only eleven Law Lords in the period studied had no previous judicial experience. The appointment of Justice Sumption (Queen’s Counsel but without much judicial experience) in May 2011 was extremely controversial.

(8.) See Burt Neuborne, “The Supreme Court of India,” International Journal of Constitutional Law 1, no. 3 (2003): 476–510; and Venkat Iyer, “The Supreme Court of India,” in Judicial Activism in Common Law Supreme Courts, ed. Brice Dickson (Oxford: Oxford University Press, 2007). Based on the Federal Court of India under the British, the Supreme Court of India was constituted in 1950. It had seven justices, six of whom (including the chief justice) had served in the British court. The composition of the Supreme Court of India has been expanded five times by constitutional amendments. The current composition is twenty-six justices. The selection of justices has been a matter of political tension. As for the appointment of the chief justice, there was supposed to be a norm that the senior justice becomes chief justice—a norm imposed by the court itself in 1951. Indira Gandhi violated the rule twice (1973 and 1976) to impose her candidate against senior justices (there were resignations at the court as a consequence). The seniority principle was reaffirmed in 1978 and since then has been followed. As for the selection of associate justices, the Indian constitution is ambiguous in the effort to avoid both the British and the American models. Appointments are to be achieved by consultations between the executive and the chief justice. Inevitably problems emerge when there is disagreement; the practice is for the executive to dominate. Three famous judicial cases have shaped the process (in 1982, 1994, and 1999) and minimize political influence by creating a powerful collegium of the five most senior justices (at the expense of the chief justice). This collegium has reinforced the trend to pick senior judges from the states’ high courts. The system of collegium has recently been challenged before the Supreme Court of India. Satya Prakash, “Abolish Collegium System: Govt,” Hindustan Times, April 4, 2011, http://www.hindustantimes.com/StoryPage/Print/681311.aspx.

(p.234) (9.) See Daniel Klerman, “Non-Promotion and Judicial Independence,” Southern California Law Review 72 (1998): 455–64.

(10.) Diffusion data on file with authors.

(11.) See Stephen B. Burbank and Barry Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, CA: Sage, 2002).

(12.) Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981).

(13.) See, for example, Sanford Levinson, “Identifying ‘Independence,’ ” Boston University Law Review 86 (2006): 1297–308 (providing different concepts of judicial independence and arguing that there might be too much independence); Stephen B. Burbank, “The Architecture of Judicial Independence,” Southern California Law Review 72 (1999): 315–51 (explaining judicial independence in contemporary American history); Archibald Cox, “The Independence of the Judiciary: History and Purposes,” University of Dayton Law Review 21, no. 3 (1996): 565–84 (discussing historical reasons for judicial independence); John A. Ferejohn and Larry D. Kramer, “Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint,” New York University Law Review 77 (2002): 962–1038 (arguing that independence and accountability aim at a well-functioning system of adjudication); John Ferejohn, “Judicializing Politics, Politicizing Law,” Law and Contemporary Problems 65, no. 3 (2002): 41–68; John Ferejohn, “Independent Judges, Dependent Judiciary: Explaining Judicial Independence,” Southern California Law Review 72 (1999): 353–84 (discussing institutional protections for judges and the judiciary and explaining interest theories of judicial independence); Gordon Bermant and Russell R. Wheeler, “Federal Judges and the Judicial Branch: Their Independence and Accountability,” Mercer Law Review 46 (1995): 835–61 (identifying different levels of independence, including decisional independence, personal independence, procedural independence, administrative independence, as well as different levels of accountability, namely internal versus external accountability); Frances Kahn Zemans, “The Accountable Judge: Guardian of Judicial Independence,” Southern California Law Review 72 (1999): 625–55 (discussing institutional versus decisional independence); Rehnquist, “Seen in a Glass Darkly” (making the point that the shape of the court system is too important to be left to the judiciary); and Brace and Hall, “The Interplay of Preferences, Case Facts, Context, and Rules.” See also Burbank and Friedman, Judicial Independence at the Crossroads.

(14.) See, for example, Kosar, “Least Accountable Branch”; Francesco Contini and Richard Mohr, “Reconciling Independence and Accountability in Judicial Systems,” Utrecht Law Review 3, no. 2 (2007): 26–43; Wim Voermans, “Judicial Transparency Furthering Public Accountability for New Judiciaries,” Utrecht Law Review 3, no. 1 (2007): 148–59; Daniela Piana, “From Judicial Independence to Judicial Accountabilities” (unpublished manuscript, 2009; (p.235) arguing that political insulation does not preclude accountability to other institutions that could be social in nature); and Michael Dowdle, Public Accountability: Designs, Dilemmas and Experiences (Cambridge, UK: Cambridge University Press, 2006).

(15.) See Stephen Burbank, “Judicial Independence, Judicial Accountability and Interbranch Relations,” University of Pennsylvania Law Schools Working Paper No. 102, 2006, http://lsr.nellco.org/upenn/wps/papers/102, who argues that judicial independence in the United States is at a tipping point because of a characterization of judicial politics as ordinary politics.

(16.) Stephen M. Bainbridge, Corporation Law and Economics (St. Paul, MN: Foundation, 2002).

(17.) The intermediary is also, of course, an agent of the principal whose job is to control another agent. Notice that the intermediate body is paid by the principal, the taxpayers, as in the usual economic model.

(18.) See Martin M. Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988), on administrative law.

(21.) Measuring the performance of judges has been the object of some work but is still quite underdeveloped. Whereas quantitative measures (workload) and qualitative measures (reversal rates in appeal courts) are by now largely developed, complexity is still a problem (even the use of citations is still the object of discussion). See Choi and Gulati, “A Tournament of Judges?”; Stephen J. Choi and G. Mitu Gulati, “Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance,” Southern California Law Review 78 (2004): 23–117; and Steven G. Gey and Jim Rossi, “Empirical Measures of Judicial Performance: An Introduction to the Symposium,” Florida State University Law Review 32 (2005): 1001–14.

(22.) In fact, the “laymen” in many types of council are lawyers, law professors, or legally educated individuals—hardly the standard example of independent laymen.

(23.) If the judges are supreme court judges, the council may tend to focus on the power struggle between government and supreme court and on maintaining a vertical hierarchy within the judiciary. However, if they are lower court judges, we should expect a relatively smaller role for the supreme court (which might be welcomed by the government). We have observed an increasing role of judicial associations (unions), which are motivated (p.236) by the need to coordinate the interests of junior judges to undermine the traditional vertical hierarchy.

(24.) Among others, see James R. Rogers, Roy B. Flemming, and Jon R. Bond, eds., Institutional Games and the U.S. Supreme Court (Charlottesville: University of Virginia Press, 2006); Timothy Besley and Abigail Payne, “Judicial Accountability and Economic Policy Outcomes: Evidence from Employment Discrimination Charges,” London School of Economics Institute for Fiscal Studies Working Paper No. W03/11, 2003; Barry Friedman, “The Politics of Judicial Review,” Texas Law Review 84 (2005): 257–337; Tracey E. George and Lee Epstein, “On the Nature of Supreme Court Decision Making,” American Political Science Review 86, no. 2 (1992): 323–37; Tom Ginsburg, “Economic Analysis and the Design of Constitutional Courts,” Theoretical Inquiries in Law 3 (2002): 49–85; Jonathan R. Macey, “Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model,” Columbia Law Review 86 (1986): 223–68; Jonathan R. Macey, “Competing Economic Views of the Constitution,” George Washington Law Review 56 (1987): 50–80; and Alexander Tabarrok and Eric Helland, “Court Politics: The Political Economy of Tort Awards,” Journal of Law & Economics 42 (1999): 157–88.

(25.) But see Linn Hammergren, “Do Judicial Councils Further Judicial Reform? Evidence from Latin America,” Carnegie Endowment for International Peace Rule of Law Working Paper Series No. 28, June 2002; and Stefan Voigt and Nora El-Bialy, “Identifying the Determinants of Judicial Performance: Taxpayers’ Money Well Spent?” working paper, 2013, http://ssrn.com/abstract=2241224.

(27.) We believe the primary rationale to be considered in assigning the task to a council is economies of scale and specialization vis-à-vis alternative managers, such as a ministry of justice (arguably better able to do things like purchasing supplies) or a supreme court (a body that typically has little time or expertise for management).

(28.) On the other hand, the politics of setting up the councils may vary greatly depending on local circumstances, in particular the historical balance of power between government and supreme court. For example, the extent to which the justices are easily captured by the government will result in different models of judicial council.

(29.) Hanssen’s data from the United States suggests that the timing of the adoption of council-type mechanisms reflects these motivations.

(30.) A precursor for judicial councils can be seen in the use of formal nomination committees composed of various governmental officials. See, for example, Albania Const. of 1925 (judicial nominations from special committee of judges, prosecutors, and Minister of Justice). France had a council for disciplining justices dating back all the way to 1833.

(p.237) (31.) The Italian council was made up of thirty-three members: twenty magistrates elected directly by the judges, ten lawyers or law professors nominated by Parliament, and the president, chief justice, and chief prosecutor all serving ex officio. It has been reformed recently to include only twenty-four members: sixteen ordinary magistrates and prosecutors and eight lawyers or law professors with fifteen years of experience in the legal profession, all of whom are appointed by Parliament. See Cheryl Thomas, Judicial Appointments in Continental Europe, Lord Chancellor’s Department Research Series No. 6, 1997.

(33.) New York faces a similar problem today, leading a judge to bring a lawsuit to allow her to run for a higher court without securing the blessing of party bosses. See Mark Hansen, “Questioning Conventional Behavior,” ABA Journal 93 (2007): 21–22.

(34.) With respect to the federal judiciary, see Charles Gardner Geyh, “Customary Independence,” in Burbank and Friedman, Judicial Independence at the Crossroads, 160, who discusses the historical foundations of the norms against court packing—namely, the Judiciary Act of 1789, the Midnight Judges Act of 1801 and its repeal in 1802, and Roosevelt’s court-packing plan of 1937.

(35.) Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice,” Journal of the American Judicature Society 20 (1937): 178–87.

(36.) Webster, “Selection and Retention of Judges”; Reddick, “Merit Selection” (noting only thirty-three judges lost retention elections in the entire United States between 1942 and 1978).

(40.) See, for example, Reddick, “Merit Selection” (reviewing the literature).

(42.) For at least one indicator, states with the residual category of “other” appointment methods (typically legislative or gubernatorial appointment) have more political competition. See ibid., 720 (“In 95 percent of partisan election states the same party controlled both houses of the legislature, versus in 87 percent of merit plan states and 81 percent of other states.”).

(43.) Ramseyer, “Puzzling (In)dependence of Courts.” See also Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, UK: Cambridge University Press, 2003); Mathew C. Stephenson, “ ‘When the Devil Turns …’: The Political Foundations of Independent Judicial Review,” Journal of Legal Studies 32 (2003): 59–89; Lee Epstein, Jack Knight, and Olga Shvestova, “Selecting Selection Systems,” in Burbank and Friedman, Judicial Independence at the Crossroads, 191 (arguing that selection (p.238) systems are determined by political uncertainty and risk; empirical evidence seems to confirm that as political uncertainty has decreased, bolstering accountability has expanded as the main goal of judicial selection).

(44.) Webster, “Selection and Retention of Judges”; Henry R. Glick, “The Promise and Performance of the Missouri Plan: Judicial Selection in the Fifty States,” University of Miami Law Review 32 (1978): 509–41. See also Choi, Gulati, and Posner, “Professionals and Politicians.”

(46.) See the discussion by Maria Angela Jardim de Santa Cruz Oliveira in “Reforming the Brazilian Supreme Federal Court: A Comparative Approach,” Washington University Global Studies Law Review 5 (2006): 99–150.

(48.) Brazil Const., amend. 7, art. 120.

(52.) Rogério B. Arantes, “Constitutionalism, the Expansion of Justice and the Judicialization of Politics in Brazil,” in The Judicialization of Politics in Latin America, ed. Rachel Sieder, Line Schjolden, and Alan Angell (New York: Palgrave Macmillan, 2005).

(54.) Brazil Const., amend. 45, art. 103B.

(57.) Israel Basic Law: The Judicature, Courts Law 5744-1984 §§ 1–24. This replaced the Judges Act (1953) as the primary statute governing judicial appointments.

(58.) Ibid., § 4.

(59.) Levinson, “Identifying ‘Independence,’ ” 1306; Eli M. Salzberger, “Judicial Appointments and Promotions in Israel: Constitution, Law and Politics,” in Malleson and Russell, Appointing Judges in an Age of Judicial Power, 241, 248. Salzberger believes that the crucial factor is the majority of jurists on the committee and the majority of judges among the jurists.

(61.) See Shimon Shetreet, “The Critical Challenge of Judicial Independence in Israel,” in Russell and O’Brien, Judicial Independence in the Age of Democracy, 233, who points to changes in the rules of justiciability and standing; judges leading commissions of inquiry into corruption, administration, police acts, and oil drilling operations; and the judicial and legal consequences of security considerations.

(62.) Salzberger, “Judicial Appointments and Promotions in Israel,” 242, 249. Salzberger characterizes Barak as shifting the court from a formalist conception of law to a more values-based jurisprudence.

(p.239) (63.) Ibid., 252–53.

(64.) Binyamin Blum, “Doctrines without Borders: The ‘New’ Israeli Exclusionary Rule and the Dangers of Legal Transplantation,” Stanford Law Review 60 (2008): 2121–72, at 2164; Amos N. Guiora and Erin M. Page, “Going Toe to Toe: President Barak’s and Chief Justice Rehnquist’s Theories of Judicial Activism,” Hastings International and Comparative Law Review 29 (2005): 51–69.

(65.) Edna Adato and Israel Hayorn Staff, “MKs, Judicial Officials Hail Grunis Appointment as Chief Justice,” Israel Hayom, February 12, 2012, http://www.israelhayom.com/site/newsletter_article.php?id=3085.

(66.) Lahav Harkov, “Judicial Selection Reforms Pass Initial Votes,” Jerusalem Post, November 14, 2011, http://www.jpost.com/Diplomacy-and-Politics/Judicial-selection-reforms-pass-initial-votes.

(67.) Lazar Berman, “Bills Aimed at Checking Judicial Power Head to Knesset,” Times of Israel, October 20, 2013, http://www.timesofisrael.com/bills-aimed-at-checking-judicial-power-head-to-knesset.

(68.) Jonathan Lis, “Knesset Approves Bill to Ensure Women’s Spots on Judicial Selection Committee,” Haaretz, January 21, 2014, http://www.haaretz.com/news/national/.premium-1.569674.

(69.) See Doris Marie Provine and Antoine Garapon, “The Selection of Judges in France: Searching for a New Legitimacy,” in Russell and Malleson, Appointing Judges in an Age of Judicial Power, 176. See also John Bell, “Principles and Methods of Judicial Selection in France,” University of Southern California Law Review 61 (1988): 1757–94.

(70.) Six members were elected by the National Assembly, four magistrates were chosen by their peers, and two members were appointed from the judiciary by the president of the republic.

(71.) This is the current republican constitution, which replaced a parliamentary government by a semipresidential system. In the Fifth Republic, most of the traditional powers of the minister of justice were reinstated.

(72.) These members were either appointed directly by the president of the republic (two members) or appointed after nomination from the courts and Conseil d’Etat (seven members total).

(73.) See Doris Marie Provine, “Courts in the Political Process in France,” in Courts, Law and Politics in Comparative Perspective, ed. Herbert Jacob, Ekhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders (New Haven: Yale University, 1996), 177, 203.

(74.) The French constitution grants the judges a status that guarantees their independence and security of tenure.

(75.) These are the president of the republic, the presidents of the two parliamentary chambers (the Senate and the National Assembly), and the General Assembly of the Conseil d’Etat.

(76.) According to the French Constitution, there must be ordinary legislation regulating the functioning of the council. See Law No. 94-100 of February 5, 1994, Journal Officiel de la République Française [J.O.; Official gazette of France] (February 8, 1994), p. 2146; C Decision No. 93-337 DC, January 27, 1994, J.O., p. 1776; Decree No. 94-199 of March 9, 1994, J.O. (March 10, 1994), p. 3779.

(77.) See Vincent Wright, “The Fifth Republic: From the Droit de l’État to the État de droit?” West European Politics 22, no. 4 (1999): 92–119, at 92, who reports several famous scandals that generated serious clashes between the French government and the judiciary, including the Ben Barka affair, the murder of the Prince of Broglie in 1977, the suicide of the Labor minister in 1979, and the famous Canard Enchaîné affair.

(78.) See Alec Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992), who explains that the process of empowerment of the French judiciary started in the early 1970s.

(80.) Ibid. (comparing famous American and French judges).

(82.) France was ruled by right-wing administrations for more than twenty years. François Mitterrand became the first elected Socialist president of France in 1981, but after the loss of his party’s majority in the French National Assembly in 1986, he had to live in cohabitation with the conservative government of Jacques Chirac. In the legislative elections of 1993, due to economic recession, consecutive scandals, and divisions on the left, Edouard Balladur became prime minister. This gave rise to the second cohabitation of Mitterrand’s presidency. Jacques Chirac became president in 1995 and replaced Balladur with Alain Juppé. The third cohabitation started in 1997, when the president dissolved the National Assembly and Lionel Jospin became prime minister, constraining Chirac’s political influence.

(83.) Thomas, Judicial Appointments in Continental Europe.

(84.) See Véronique Pujas and Martin Rhodes, “Party Finance and Political Scandals in Italy, Spain and France,” West European Politics 22, no. 3 (1999): 41–63, who explain political corruption in Italy, Spain, and France and the role of the judiciary—in the French case, looking at the accumulated and distributed kickbacks during the Gaullist and Socialist governments.

(85.) See ibid., 59.

(86.) Valéry Turcey, “Le Conseil Superieur de la Magistrature Français: Bilan et Perspectives,” Revista del Poder Judicial 75 (2004): 539–51.

(87.) Anja Seibert-Fohr, ed., Judicial Independence in Transition (Berlin: Springer, 2012), 278.

(88.) Ibid., at 280.

(90.) The French antipathy for a powerful and activist judiciary is discussed by Burt Neuborne, “Judicial Review and Separation of Powers in France and the United States,” New York University Law Review 57, no. 3 (1982): 363–438; Michael H. Davis, “The Law/Politics Distinction, the French Conseil Constitutionnel and the U.S. Supreme Court,” American Journal of Comparative Law 34 (1986): 45–92; and Stone Sweet, Birth of Judicial Politics in France.

(91.) The Italian Constitution came into force in January 1948.

(92.) Law No. 195 of March 24, 1958, Gazzetta Ufficiale (Gazz. Uff.; Mar. 27, 1958). See, generally, Mary L. Volcansek, “Judicial Selection in Italy: A Civil Service Model with Partisan Results,” in Russell and Malleson, Appointing Judges in an Age of Judicial Power, 159.

(93.) Law No. 195 of March 24, 1958, reformed by Law No. 44 of March 28, 2002, Gazz. Uff. (March 29, 2002), sets the composition and functioning of the CSM.

(94.) Giuseppe Di Federico, “Independence and Accountability of the Judiciary in Italy: The Experience of a Former Transitional Country in a Comparative Perspective,” in Judicial Integrity, ed. Andras Sajo (Boston: Brill Academic, 2004), 181, 184–85, http://siteresources.worldbank.org/INTECA/Resources/DiFedericopaper.pdf.

(95.) Since administrative jurisdiction is assigned to bodies separate from the ordinary courts, there is also a council for administrative judges, the Consiglio di Presidenza della Magistratura Amministrativa.

(97.) Ibid. If we refer to the role of the judicial associations, there are four that are crucial in elections to the CSM. Since 1990, no judicial representatives to the CSM have been elected without the backing of one of the following groups (from left to right on the political spectrum): Magistratura democratica; Movimento per la giustizia; Unita per la Constitutzione; and Magistratura indipendente. There is also another association, Articolo 3-I Ghibellini, but it has less influence. These five associations make up the Associazione Nazionale Magistrati (ANM).

(98.) Carlo Guarnieri, “Judicial Independence in Latin Countries in Western Europe,” in Russell and O’Brien, Judicial Independence in the Age of Democracy.

(99.) Salary and benefits earned by magistrates are the highest in Italy for public service, for the purpose of guaranteeing all the conditions for true independence, regardless of individual judicial performance (under pressure from the judicial associations, judicial salaries have increased far beyond those of other civil servants).

(100.) See Patrizia Pederzoli and Carlo Guarnieri, “The Judicialization of Politics, Italian Style,” Journal of Modern Italian Studies 2, no. 3 (1997): 321–36, at 331.

(101.) Patrizia Pederzoli, “The Reform of the Judiciary,” in Italian Politics: Quo Vadis? ed. Carlo Guarnieri and James L. Newell (New York: Berghahn, 2005); David Nelken, “The Judges and Political Corruption in Italy,” in The Corruption of Politics and the Politics of Corruption, ed. Michael Levi and David Nelken (Oxford: Blackwell, 1996).

(102.) A Google search of any of these names will reveal many newspaper articles referring to their work. See, generally, Nelken, “Judges and Political Corruption in Italy.”

(104.) Daniela Piana, “From Constitutional Body to Policy Arena: Politics, Inescapable Companion of the Italian Judicial Council,” Bulletin of Italian Politics 2 (2010): 39–54, at 49.

(105.) Ibid. Also, Law No. 109/2008 amended a 2006 law on judicial discipline, to include affiliation to a political party and active participation in political activities in the list of disciplinary violations concerning the behavior of judges and prosecutors to be sanctioned. Seibert-Fohr, Judicial Independence in Transition, 380. However, it did not seem contradictory to the CSM that “the magistrates are still allowed to appear on party tickets in national, local, and European elections, to be elected and even assume positions of responsibility in the organization of the political party for which they were elected and return to the exercise of judicial functions after the end of their electoral mandate.” Ibid., 381.

(106.) See Tim Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, UK: Cambridge University Press, 2003), 76–84, who describes the growth in power of the Dutch judiciary.

(107.) Thomas, Judicial Appointments in Continental Europe.

(108.) Also note the existence of the Dutch Association of the Judiciary, Nederlandse Vereniging voor Rechtspraak. It defines itself as “the independent trade association and union of judges and public prosecutors.” The NVvR advises the Ministry of Justice and participates in international organizations, and at the end of 2004, it had 3,244 members.

(109.) The creation of the Council for the Judiciary followed the Leemhuis Commission’s advice to the minister of justice in the 1998 report Updating the Administration of Justice.

(110.) Three members come from the judiciary and two from senior positions at a government department.

(111.) See “The State of Our Democracy” (assessment report, Ministry of the Interior and Kingdom Relations, Netherlands, 2006).

(112.) Act of Settlement, 1700, 12 & 13 W. & M. 3, c. 2.

(113.) For example, Robert Stevens mentions several important episodes of political interference with the judiciary (including the decision of the Crown not to reappoint judges on the change of a monarch). He argues that the development of high formalism that protected the English judiciary from possible political interference made the judiciary increasingly irrelevant. (p.243) See Robert Stevens, The English Judges: Their Role in the Changing Constitution (Portland: Hart, 2005), 1–29.

(114.) See Johan Steyn, “The Case for a Supreme Court,” Law Quarterly Review 118 (2002): 382–96 (who finds the argument in favor of maintaining this office unconvincing simply because, in practice, the lord chancellor delegates judicial business to the law lords).

(115.) See Herbert M. Kritzer, “Courts, Justice and Politics in England,” in Jacob, Blankenburg, Kritzer, Provine, and Sanders, Courts, Law and Politics in Comparative Perspective, 81, 90–91. Less than 13 percent had parliamentary experience in the 1980s; between 1832 and 1906, it was 58 percent.

(116.) See Stevens, English Judges, 30–61, 100–194, who discusses the relationship of particular lord chancellors to politicization, arguing that Lord Kilmuir (1954–62) represented the first important shift (since he was a man of the traditionalist right of the Tories who opposed the abolishment of the death penalty); that Lord Gardiner (lord chancellor with Wilson’s Labor governments from 1964 to 1970) served as the greatest reformist by advancing Labor’s agenda; and that Lord Hailsham (lord chancellor with Edward Heath from 1970 to 1974 and with Margaret Thatcher’s government from 1979 to 1987) marked the second important shift in politicization (in part through his controversial appointments to the bench), followed actively by Lord Mackay (lord chancellor with Thatcher’s government from 1987 to 1992 and with Major’s government until 1997), Lord Irvine (lord chancellor with Blair’s government from 1997 to 2003), and Lord Falconer (lord chancellor with Blair’s government from 2003 to 2007). Stevens’s account leaves the impression of an increasing politicization of the role of lord chancellor. A similar thesis is presented by Steyn, “The Case for a Supreme Court,” who argues that the vast increase in the nature and extent of the lord chancellor’s executive responsibilities has increasingly politicized the office.

(117.) For example, senior judiciary members voted against the Irish Treaty (1922), criminal sentencing reforms (in the 1940s and 1950s), divorce law reforms (in the 1970s), a trade union and labor relations bill (1975), a police and criminal evidence bill (1984), a courts and legal services bill (1989), a human rights bill (1995), legislation concerning hunting (2001), and constitutional reform (2004). Occasionally, a law lord has introduced a bill (for example, in 1987, Lord Templeman introduced a bill on land registration). The convention that active and retired law lords are not supposed to discuss political matters is controversial.

(118.) See J. A. G. Griffith, The Politics of the Judiciary, 5th ed. (London: Harper Collins, 1997), 281–343, who argues that the myth of neutrality has undermined the building up of a strong judiciary. Griffith defends a political role for the judiciary in areas such as law and order or social issues. See also Stevens, English Judges, 76–99; and Robert J. Martineau, Appellate Justices in England and the United States: A Comparative Analysis (Getzville: William S. Hein, 1990).

(119.) Uratemp Ventures Ltd v. Collins, [2001] UKHL 43.

(120.) See Andrew Le Sueur, “The Conception of the UK’s New Supreme Court,” in Le Sueur, Building the UK’s New Supreme Court, 3 (observing a lack of sufficient transparency in such a system); and Kate Malleson, “Selecting Judges in the Era of Devolution and Human Rights,” in Le Sueur, Building the UK’s New Supreme Court, 295 (noting that a career judiciary in the United Kingdom could attract less reputation but more transparency).

(122.) See Lord Woolf, “Judicial Review—The Tensions between the Executive and the Judiciary,” Law Quarterly Review 114 (1998): 579–93, who recognizes that slowly executive-friendly judicial review has been replaced by a more intense review with higher standards of scrutiny and willingness to intervene, albeit in the absence of other constitutional safeguards. Lord Woolf was a master of the rolls, the senior civil judge in the Court of Appeal of England and Wales, from 1996 to 2000.

(123.) See J. A. G. Griffith, “The Common Law and the Political Constitution,” Law Quarterly Review 117 (2001): 42–67, who makes the argument that there are two sovereignties: that of Parliament and that of the courts.

(124.) See a personal account by Lord Denning, a law lord and master of the rolls from 1962 to 1982, in Lord Denning: The Discipline of Law (Oxford: Oxford University Press, 1975). A controversial judge, Lord Denning maintained that the principles of common law as laid down by the judges were not suited for the late twentieth century. His most relevant personal contributions were on contract laws and negligence standards. For example, his defense of the rule of law doctrine in fundamental breach in 1978 (when he was then master of the rolls) was overturned by Lord Wilberforce (then a law lord) in favor of the rule of construction doctrine.

(126.) The contradictory decisions taken by different panels of three law lords were not easily understood by the public. For a detailed account, see Stevens, English Judges, 100–118. See also Robert Stevens, “Judicial Independence in England: A Loss of Innocence,” in Russell and O’Brien, Judicial Independence in the Age of Democracy, 155.

(127.) McGonnell v. United Kingdom, European Court of Human Rights, 3rd Court Section (2000), http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-58461.

(129.) Headed by Lord Denning. Griffith, “Common Law and the Political Constitution.” Profumo was a minister of defense who shared a lover with a Russian military aide. This created a well-known scandal in the United Kingdom. See “Profumo Affair,” Wikipedia, http://en.wikipedia.org/wiki/Profumo_affair.

(p.245) (130.) Headed by Lord Wilberforce and Lord Widgery, respectively. Griffith, “Common Law and the Political Constitution.”

(132.) In the case of Scotland, judicial appointments were under review since September 1999, and an independent Judicial Appointments Board was established in June 2002.

(133.) See Diana Woodhouse, “The Constitutional Reform Act 2005: Defending Judicial Independence the English Way,” International Journal of Constitutional Law 5, no. 1 (2007): 153–65.

(136.) The president of the Courts of England and Wales sits in the Court of Appeal, the High Court, and the Crown Court, among others, and is responsible for expressing the views of the judiciary and for welfare, training, and guidance of the English judiciary. He is not the president of the Supreme Court.

(137.) The new Supreme Court was launched in 2009 with the twelve former law lords (the lords of appeal in ordinary). An ad hoc Supreme Court selection committee presided over by the president of the Supreme Court was set up for future appointments.

(138.) The JAC started selecting judges in April 2006. Kate Malleson, The Legal System (Oxford: Oxford University Press, 2005), 245–46, argues that the JAC is effectively dominated by the judiciary. The fact that the council is chaired by a nonlawyer does not seem to counter a strong judicial membership. The traditional role of the lord chancellor in judicial appointments was the object of a study by Anthony Bradney, “The Judicial Activity of the Lord Chancellor 1946–1987: A Pellet,” Journal of Law & Society 16 (1989): 360–72.

(139.) The JACO is responsible for investigating and making recommendations concerning complaints about the judicial appointments process and the handling of judicial conduct complaints and discipline. It is completely independent of the government and of the judiciary.

(140.) See, generally, Vernon Bogdanor, “Constitutional Reform in Britain: The Quiet Revolution,” Annual Review of Political Science 8 (2005): 73–98.

(141.) See Margit Cohn, “Judicial Activism in the House of Lords: A Composite Constitutional Approach,” Public Law (2007): 95–115. She considers a first example of the trend to more judicial activism the controversy surrounding the 2001 Anti-Terrorist, Crime and Security Act; the House of Lords considered the original bill inconsistent with the European Convention of Human Rights, forcing the government to make changes. More recent decisions have been perceived as a rising judicial activism. Other scholars go back to the Human Rights Act of 1998, which enhances judicial review by providing an augmented interpretative mandate. This has entrenched some of the Labor political ideas protected by courts through a more active judiciary. See, generally, Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008), 27–33.

(142.) See Robert Stevens, “Reform in Haste and Repent at Leisure: Iolanthe, the Lord High Executioner and Brave New World,” Legal Studies 24 (2004): 1–34, at 14.

(143.) See Kate Malleson, “Modernizing the Constitution: Completing the Unfinished Business,” Legal Studies 24 (2004): 119–33, at 120.

(144.) See, for example, Robert Stevens, “A Loss of Innocence? Judicial Independence and the Separation of Powers,” Oxford Journal of Legal Studies 19 (1999): 365–402; and Matthew Flinders, “Mechanisms of Judicial Accountability in British Central Government,” Parliamentary Affairs 54, no. 1 (2001): 54–71.

(145.) There is only one woman as lord of appeal in ordinary (Baroness Hale).

(146.) For an empirical analysis, see Jordi Blanes and Clare Leaver, “Are Tenured Judges Insulated from Political Pressure?,” Journal of Public Economics, 95 (2011): 570–86. See Griffith, “Common Law and the Political Constitution,” 18–21; and Kritzer, “Courts, Justice and Politics in England,” 92.

(149.) Ibid., 162.

(150.) Ibid., 161.

(151.) Concerns about the extent to which the present reform enhances judicial independence have been echoed by Sue Prince, “The Law and Politics: Upsetting the Judicial Apple-Cart,” Parliamentary Affairs 57 (2004): 288–300.

(152.) Graham Gee, Robert Hazell, Kate Malleson, and Patrick O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge, UK: Cambridge University Press, 2015).

(153.) Robert Hazell, “Judicial Independence and Accountability in the UK,” University College London School of Public Policy, June 2014, https://www.ucl.ac.uk/constitution-unit/research/judicial-independence/Conference_Paper_Judicial_Independence_and_Accountability_in_the_UK_jun14.

(154.) See, for example, Rebecca Bill Chavez, “The Appointment and Removal Process for Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Promoting Judicial Independence,” Latin American Politics & Society 49, no. 2 (2005): 33–58. Some refer to a distinction between a “Northern European Model” more focused on management concerns and a “Southern European Model” that is constitutionalized and focused on structural independence. Wim Voermans and Pim Albers, Councils for the Judiciary in EU Countries, European Commission for the Efficiency of Justice (CEPEJ), 2003. We reject this distinction as unhelpful and instead develop an index of powers and competences.

(p.247) (155.) See Hammergren, “Do Judicial Councils Further Judicial Reform?” See also Pedro C. Magalhaes, “The Politics of Judicial Reform in Eastern Europe,” Comparative Politics 32 (1999): 43–62 (discussing the judicial institutional design in Bulgaria, Hungary, and Poland and how it relates to the bargaining process between the different political actors); Pilar Domingo, “Judicial Independence: The Politics of the Supreme Court of Mexico,” Journal of Latin American Studies 32, no. 3 (2000): 705–35 (arguing that specific constitutional reforms and the politics of co-optation subordinated the judiciary to the dominant party until 1994); Peter H. Solomon, “Putin’s Judicial Reform: Making Judges Accountable as well as Independent,” East Europe Constitution Review 11 (2002): 117–23 (discussing the reforms to the Judicial Qualification Commission); and Lauren Castaldi, “Judicial Independence Threatened in Venezuela: The Removal of Venezuelan Judges and the Complications of Rule of Law Reform,” Georgetown Journal of International Law Review 37 (2006): 477–506 (discussing the current situation in Venezuela).

(156.) Art. 3.2.

(157.) Art. 3.1.

(158.) Subject to review by the Supreme Court; Art. 3.4.

(159.) Council of Europe Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges Recommendation No. R (94) 12 (1994), art. I.2.c.

(160.) See Violane Autheman and Sandra Elena, “Global Best Practices—Judicial Councils: Lessons Learned from Europe and Latin America,” ed. Keith Henderson, International Foundation for Electoral Systems Rule of Law White Paper Series, 2004, http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2004/22/WhitePaper_2_FINAL.pdf, who argue that judicial councils should be composed of a majority of judges elected by their peers and should be tasked with selection, promotion, discipline, and training.

(161.) These data are from the Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org.

(163.) Data available from the Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org.

(164.) Judicial independence on every measure is lower for these countries. Countries with constitutionalized judicial councils have a mean De Facto Independence (Voigt) score of .51, while those with nonconstitutionalized councils have a score of .41, though the n is too low to determine a significant difference in means. Using Howard and Carey’s measure of judicial independence, the means are .47 and .16, respectively, significant at the .01 level.

(165.) The analysis follows that of Tom Ginsburg and Mila Versteeg, “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics and Organization (2014), doi:10.1093/jleo/ewt008. A probit “onset” model is functionally similar to a duration model but does not directly examine duration. Because figure 4.3 suggests that the probability of adopting a judicial council increases over time, we have to account for duration dependence in our model. We model duration dependence in an ordinary logit or probit framework. See, for example, Janet M. Box-Steffensmeier, Suzanna de Boef, and Kevin Sweeney, “Multilevel, Stratified, Frailty Models and the Onset of Civil War,” 2005, http://www.researchgate.net/publication/228383646_Multilevel_Stratified_Frailty_Models_and_the_Onset_of_Civil_War.

(166.) Wealth is modeled using GDP data from the Penn World Tables of the Center for International Comparisons of Production, Income and Prices, University of Pennsylvania, https://pwt.sas.upenn.edu/php_site/pwt_index.php.

(167.) This is a metameasure of de facto judicial independence that combines eight extant measures of de facto judicial independence into a single measure. See Drew Linzer and Jeffrey Staton, “A Measurement Model for Synthesizing Multiple Comparative Indicators: The Case of Judicial Independence” (paper presented at the 2011 Annual Meeting of the American Political Science Association, Seattle, September 2012). There has been some methodological criticism of this measure, so we tested our model on other measures such as those of Howard and Carey, and Feld and Voigt, with substantially similar results.

(169.) In an unreported specification in which dummy variables for regions are included, common law has a significant negative correlation with judicial council adoption, but we believe this result is driven by the presence of regional controls indicating that countries in South Asia, all of which are common law jurisdictions, are particularly likely to adopt a judicial council. This washes out part of the effect of the common law.

(171.) See Tom Ginsburg and Nuno Garoupa, “Guarding the Guardians: Judicial Councils and Judicial Independence,” American Journal of Comparative Law 57, no. 1 (2009): 201–32.

(175.) Autheman and Elena, “Global Best Practices,” 4, provide a very interesting report of survey data from five Central American countries. Respondents in those countries that had a judicial council reported that the council had a negative impact on judicial independence. Respondents in those countries that did not have a judicial council felt that adopting a judicial council would increase judicial independence. These two results are not (p.249) contradictory from our point of view. First, the two sets of countries have different starting places and are likely to vary systematically. Second, the countries that have adopted judicial councils may have done so to enhance accountability rather than independence, in which case respondents are observing a successful institution.

(176.) Cristina Parau, “East Side Story: How Transnational Networks Contested EU Accession Conditionality,” Europe-Asia Studies 62, no. 9 (2010): 1527–54.