The Politics of International Judicial Appointments

I. INTRODUCTION How, if at all, do governments influence the choices that international judges make? This question has justly received ample attention in the literature. Unlike in the study of American judicial politics, however, relatively few of these scholarly efforts have been devoted to the question of how governments use the appointment process to shape the international judiciary. There are some good reasons for this. International courts cannot easily be stacked with like-minded judges by a single government. Moreover, (threats of) noncompliance and withdrawal of institutional support are more credible mechanisms for influencing judicial behavior in most international settings than in established liberal democracies. Yet the politics of the appointment process does shape the composition of the international judiciary in interesting ways. International judges are much more diverse in their backgrounds and preferences than is commonly assumed. To some, the prototypical international judge is a committed professional with exceptional moral standards who cares deeply about the advancement of international law and is largely unresponsive to material incentives or political pressures. To others, international judges are more like diplomats who use legal reasoning as a guise for making decisions that fit the national interests of the governments that appointed them.1 To the extent that empirical research exists, it appears to show that the international judiciary contains examples of both these ideal types as well as many others. More interestingly, this research suggests that this variation can be understood reasonably well by examining the motivations of governments and the institutional details of the appointment process. This Article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. Although the conclusion offers some discussion of the normative implications of this research, this is deliberately not an attempt to identify how the appointment process should work, but rather an exploration of if and how governments do use the appointment process to shape the international judiciary. Theoretically, the Article draws from the broad framework of principal-agent theory, in which governments are the multiple principals and judges the multiple agents. This framework does not assume that the agents always do what the principals want them to do. In fact, the incentives that governments have for delegating a task to agents typically imply that the agents should have at least some leeway in how they will execute this task. The precise manner in which governments do affect judicial behavior through the appointment process depends on the motivations of judges and governments, as well as on the institutions that govern the appointment and retention process. Theoretically, governments can use the appointment process to influence judicial behavior in two ways. First, they can select judges whom they expect to make decisions that match their perceived interests. For example, in the American context, liberal administrations tend to appoint more liberal judges than conservative administrations. Similar selection behavior is also common in other liberal democracies and, presumably, in less liberal states. An obvious difficulty with this strategy is that governments have imperfect ex ante information about how judges will behave while on the bench. Yet, governments may be able to make reasonable inferences from past behavior, interviews, or the political and professional backgrounds of prospective international judges. Second, governments may use (threats of) ex post sanctions and rewards to provide incentives to judges; There is a large body of evidence in the American context that shows that the method of retention is an important source of influence on judicial behavior. For example, trial judges who are retained through popular elections are much more punitive in their sentencing behavior than appointed trial judges, presumably because the electorate favors tough sentences. …