PLS 322 Exam 1: De Jure and De Facto Judicial Independence

Judicial independence

independence from other political institutions/branches

authority

limits of judicial discretion/freedom to make creative decisions

• includes ability of courts to have decisions implemented

de jure independence

• by law- written into code how:

  • judges get recruited for court(recruitment)

  • how long a judge can serve on a court for(tenure)

  • how judges move up the heirarchy(promotion)

  • how can judges be removed(removal)

• LEGAL/CONSTITUTIONAL GUARANTEES FOR JUDGES

executor judge

strictly apply law as written, with little to no room for exception/discretion

• low independence, low authority

delegate judge

room for discretion, but still subordinate to political organs of government

• low independence, high authority

guardian judge

judge can decide against legislator, but limited to alter policy

• high independence, low authority

political judge

high autonomy, high discretion

• high independence, high authority

what are the four types of selection mechanisms to select judges?

1. career service

2. appointment by executive

3. judicial appointment commision

4. election

career service

• enter judiciary after a formal education on being a judge,

• examination/apprenticeship

• serve for life

• promotions happen under supervised evaluation

  • mainly happens in civil law countries

  • also happens in China and Japan

judicial councils

• a body that oversees judicial performance- mostly staffed by sitting judges elected by other judges

  • occasionally may include lay members or lawyers

  • powers vary from recruitment, to promotion and discipline

  • claim to protect judicial independence

executive appointment

• most judges are technically appointed by executive branch/crown (constitutional monarchies)

• this practice is most common in common law countries

  • lawyers transition to judges at some point in their careers

  • attorney general/minister of justice oversees and vets judges

  • usually have tenure for life or in some places until mandatory retirement age

  • promotions occur by same process as appointment

  • 
    

judicial appointment commissions

NOTE: think of actual job applications

• they advertise, hold tests, interviews, and have screening mechanisms to select/nominate judges

  • “most popular selection system in 21st century”

  • found in Canada, Norway, England, Wales, Scotland, Northern Ireland, South Africa, Bulgaria, etc

judicial elections

• common among US states

  • not very common outside of individual US states (except for Bolivia and Mexico)

  • evaluated by merit, pre-approved by legislature

    • ended up with historical most diverse judiciary

De facto independence

actual judicial independence

• de jure protections guaranteed

• can judges make decisions independent of outside influence

can judicial indpendence be measured? and why?

• no

• not directly observable

• “latent variable”:

  • variable cannot be directly measured”

• why?

  • de jure independence does not conform to reality

  • judicial decisions respond to different incentives

judicial incentives

overt threates, veiled threats, anticipated/structural threats

overt threats

• intimidating judges into decisions

• transforming courts into instruments of executive power

  • packing courts with loyalists, etc

• removal of jurisdiction

• extra judicial executions instead of bring cases to court

veiled threats

• judges believe they are threatened(Burundi vice president example)

• judges know wishes of regime and act accordingly

• judges are provided incentives

structural breaches/threats

• heirarchical supervision by higher courts

  • promotions, salaries, transfers, and discipline

• removal of cases from ordinary courts:

  • sensitive cases steered away from regular courts to special courts

• authority of judges constrained but independence conserved!

insurance theory

ensuring that the rules will be applies when one is not in power

• also called political theory

institutional design

• captures how political actors relationships interconnect,

• reflects de jure independence but also defines inter-institutional accountability/insularity

• almost always is the product of politics

judicial trilemma

judicial independence, transparency, authority

judicial transparency

mechanisms that permit identification of individual judicial positions (individual opinions and dissents)

• high transparency= publication of votes

• low transparency= unknown which judges which voted in favor of decision

judicial accountability

structural check on judicial authority found in reappointment and reelection processes

• has two parts: terms= lengths and institutional veto players

  • high accoutability= judges with short renewable terms

  • low accountability= judges with lifetime terms (US federal judges)

tradeoffs with three trillema values:

CAN ONLY PRIORITIZE 2/3 AT A TIME- NOT ALL THREE AT ONCE

European Court of Human Rights/ Justice design

HIGH levels of independence and transparency with LOW accounability

High independence, high accountability

• protects identifiability of judges

• short renewable terms

  • minimized transparency

  • Example: Criminal Justice of European Union (CJEU)

high independence, high transparency

• judges votes are identifiable

• have lifetime/fixed terms

  • low accountability

  • Example: International Criminal Court(ICC)

High accountability, High transparency

• renewable terms, short

• identifiable decisions(published to public)

  • low independence

    • judges under pressure to offer rulings that will appease appointer

    • make it seem more likely that they were appointed - more likely in authoritarian regimes

  • Example: International Court of Justice(ICJ), investment arbitration tribunals

institutional veto players in democracies

• political compromise

• future election outcomes- judicial independence is conditional on electoral competition

  • authoritarian governments:

    • courts offer credible commitments

    • monitor low level bureaucrats

    • lend an aura of legitimacy

    • not veto players

Veto players in institutional designs

• institutional:

  • Senate, H of R, President, Supreme Court in US

  • more institutional players= more stability and less policy change

• Partisan:

  • relevant political parties that result from electoral system

  • multiparty systems with coalition governments

  • less ideological distance between partisan veto players= more stability

    • further ideologically= less stability