Politics ofjudicial governance 263
16. Politics of judicial governance
David Kosaf and Katarina Sipulovd'
The power o f courts has increased worldwide at an unprecedented pace. A t the same time
judicial governance has changed as w e l l . M o s t importantly, several regions have witnessed
a steady rise i n j u d i c i a l self-governance. W h i l e in 1985 only around 10 per cent o f jurisdictions
in the w o r l d had judicial councils or judicial appointment commissions, in 2015 these
bodies participated in the selection o f judges in almost 60 per cent o f countries (Garoupa and
G i n s b u r g 2 0 l 5 ) .
This phenomenon is truly global. M a n y c o m m o n law countries introduced judicial appointment
commissions, which eventually became a dominant model in the Commonwealth
(B11CL 2015), spanning from Australia (Bunjevac 2020) to South A f r i c a (Oxtoby 2021;
Brett 2022) and E n g l a n d and W a l e s (Gee, Hanzell & Malleson 2015). E v e n within the United
States several states implemented the so-called 'merit plan' (or ' M i s s o u r i plan'), which
resulted in the rise o f merit commissions involved in the selection of state judges (Volcansek
2009; Goelzhauser 2018). Several African and A s i a n countries entrenched a judicial service
commission (e.g. K e n y a , South Africa and Malaysia) or a judicial council (e.g. Tunisia and
Bangladesh) in their constitutions (Oxtoby 2021; Bari 2022). Judicial councils spread also in
Latin A m e r i c a , where they started to compete with the supreme courts over influence within
the judiciary (Hammergren 2002; B i l l C h a v e z 2005; P o z a s - L o y o & Rios-Figueroa 2018).
Europe has gone even further. M a n y countries, such as France, Italy, Portugal, Spain, the
Netherlands, and most recently Ireland have introduced judicial councils voluntarily (Kosař
2018; Castillo-Ortiz 2019). Virtually all post-communist states in Central and Eastern Europe
did so under pressure from the European U n i o n during the accession process (Bobek and
K o s a ř 2014; K o s a ř 2016; Parau 2018).
The key element o f all these reforms was the transfer o f powers concerning judicial governance
from political branches to judges and bringing in the expert element. The new judicial
self-governance bodies decide primarily on issues concerning the careers o f individual judges.
Judicial councils usually have broader powers, spanning from decisions concerning the selection,
promotion, and disciplining o f judges to various housekeeping functions (Garoupa &
Ginsburg 2015; K o s a ř 2016). Judicial appointment commissions have a narrower mandate as
they decide merely on the selection o f judges.
However, selection, promotion, and disciplining o f judges and other decisions concerning
the careers o f individual judges are just a snapshot o f judicial governance, w h i c h has undergone
important developments in other areas, too. Judicial training has professionalised, and
new specialised judicial academies have been introduced i n many countries. Digitalisation,
hastened by the C O V I D - 1 9 pandemic, brought with it new tools and software. Even administrative
decisions on the courts' functioning, such as the overall number o f judges assigned to
1
The research leading to this project has received funding from the European Research Council
(ERC) under the European Union's Horizon 2020 research and innovation program (INFINITY grant
no. 101002660).
a court, the number and composition o f panels at each court, the overall number o f assigned
administrative personnel and law clerks, case allocation, and judicial performance evaluation,
were overhauled. M o r e o v e r , there is an increasing institutional variety in exercising
administrative governance within the judiciary, as these tasks can be implemented not only
by traditional bodies such as judicial councils, the Supreme Court, court presidents, and the
'US-style' judicial conference complemented by the Director o f the Administrative Office o f
the U . S . Courts, but also by the novel agencies such as the Court Service (Qeyh 2021) and the
'Israeli-style' Director o f Courts (Lurie et al. 2019; Bunjevac 2020).
This development reflects the growing demands placed on a m o d e m client-oriented j u d i c i ary
i n the twenty-first century. The judiciary must be flexible and respond to novel challenges
such as the C O V I D - 1 9 pandemic, digitalisation, and calls for greater diversity. A t the same
time, o l d challenges have not disappeared. Politicians are still w i l l i n g and able to tinker w i t h
the judiciary and align their decision-making with their preferences. T h i n k o f H u g o C h a v e z ' s
frontal attacks on the Venezuelan judiciary (Taylor 2014), Recep Erdogan's abrupt changes
in judicial governance and purges within the Turkish judiciary after the failed coup d'etat
(Ozbudun 2015; Esen & G u m u s c u 2016; V a r o l , Pellegrina & Garoupa 2017; O l c a y 2017),
the M o d i government's interference with judicial appointments in India (Khaitan 2020), or
Benjamin Netanjahu's recent judicial reform proposal curtailing Supreme Court's constitutional
review competence and imposing executive control over judicial appointments (Weiler
2023). E v e n within the European U n i o n we can see a backlash against the rise o f judicial
self-governance as several judicial councils i n Central and Eastern Europe were h o l l o w e d out
(Jakab 2020) or captured (Sledzinska-Simon 2018; see also Chapter 33 by Petra B a r d , N 6 r a
Clvronowski and Zoltan Fleck i n this volume).
These examples o f a straightforward backlash against judicial self-governance b y populist
or authoritarian regimes show that the increasing involvement o f judges injudicial governance
is not a linear development However, even in consolidated democracies some politicians as
well as scholars have criticised the rise o f judicial self-govemance. They usually argue that
the judiciary lacks democratic legitimacy, that too m u c h judicial self-governance m a y lead to
self-replication, non-responsiveness and corporativism o f judges, and, more pragmatically,
that judges do not have the necessary political capital to negotiate with other ministries the
budgetaiy issues nor the political leverage to push through the necessary legislation in the
parliament. These concerns resulted i n including civil society members and non-lawyers in
judicial appointment commissions (Gee et al. 2015), reducing the number o f judges on a j u d i cial
council (Vauchez 2018), as well as retaining certain powers within the M i n i s t r y o f Justice
(Vasek 2022). This pushback against judicial self-governance took place in good faith and
the relevant changes were made incrementally. Therefore, it should be distinguished from the
backlash exercised by populist or authoritarian regimes.
262
264 Research handbook on the politics of constitutional law Politics of judicial governance 265
A t the same time, political interferences with judicial governance triggered the proliferation
o f various international standards on the global2
as well as regional3
level. These international
standards were initially treated as soft law, but their normative weight has increased over
time. This development has also contributed to the judicialisation o f judicial governance on
the domestic as well as supranational level. O n the domestic level, constitutional tribunals and
supreme courts stalled reviewing judicial appointments, the disciplining o f judges, and case
assignment more thoroughly. O n the supranational level, regional human rights courts, especially
the Inter-American Court o f H u m a n Rights and the European Court o f Human Rights
have been keen to shape domestic j u d i c i a l design by creative interpretation o f their founding
documents (Kosař & L i x i n s k i 2015). The European Court o f Justice j u m p e d on the bandwagon
as w e l l and developed a whole new set o f requirements for judicial governance i n order to
respond to the attacks against the rule o f l a w and judicial independence i n Hungary, Poland
and R o m a n i a (Kochenov & Pech 2021; K o s a ř & V i n c z e 2022; Bustos 2022).
The a i m o f this chapter is to conceptualise judicial governance, address the m a i n challenges
(both old and new) it faces, and identify the new trends therein. In doing so we bring insights
from law as well as political science. W e also look beyond the formal rules and institutional
templates and emphasise the politics o f judicial governance and the role o f informal institutions.
Our major argument is three-fold. First, we argue that we must go beyond the executive
and judicial councils and also study other actors o f judicial governance such as chief justices
and judicial associations. Second, we show that channels o f politicisation o f the judiciary
never disappear completely. The creation o f a judicial self-governance body does not make
the power disappear or the dangers evaporate. P o w e r is just transferred to other hands and
new channels o f politicisation o f the judiciary are created (Spáč, Šipulová and Urbániková
201S; Spáč 2020). Third, informal institutions and gender norms are crucial for understanding
judicial governance.
This chapter proceeds as follows. Section 1 conceptualises judicial governance and identifies
its dimensions. Section 2 zeroes i n on the growing number o f relevant actors in judicial
governance. Section 3 analyses its changing channels o f politicisation. Section 4 identifies
three recent trends in judicial governance (judicialisation, internationalisation, and standardisation)
and their repercussions. Section 5 discusses informal aspects o f judicial governance,
which are often overlooked, yet form a proverbial glue that allows the smooth administration
of the judiciary. Section 6 then demonstrates the importance o f understanding the gender
aspects o f judicial governance. Section 7 concludes.
2
See e.g. Arts. 9 and 13 of the 2010 Magna Carta of Judges (https://rm.coe.int/2010-ccje-magna
-carta-anglais/168063e43I), Arts. 2.3 and 3 of the 1999 Universal Charter of the Judge (https://www
.iaj-uim.org/universal-charter-of-the-judge-2017/), Art. 32 of the 2010 Report on the Independence
of the Judicial System (https:// www. Venice. coe.int/webforms/documents/dcfault.aspx?pdffile=CDL
-AD(2010)004-e), Bangalore principles of Judicial Conduct of 2006 https://wwwjiidicia]integritygroup
.org/images/resources/documents/ECOSOC_2006_23_Engl.pdf.
3
European Network of Councils for the Judiciary (2017). Performance Indicators 2017. Available
at: https;//www.encj.eu/images/stories/pdf/workinggroups/mdependence/encj_report_ia__ga_adopted
_ga_13_6.pdf.
1.
JUDICIAL G O V E R N A N C E A N D ITS DIMENSIONS
judicial governance has been the b u z z w o r d for more than two decades. Questions on how
best to balance principles o f judicial independence and accountability, how to distribute the
power between judges and politicians, insulate courts from political interference, prevent
court-packing and telephone justice, and h o w to discourage judicial corruption and clientelism
gradually increased in importance and became a salient topic o f judicial studies scholarship
as well as judicial reforms (on the clash between j u d i c i a l independence and accountability see
also Chapter 15 by Vanberg, B r o m a n and Ritter i n this volume), ft is becoming evident that
even the writ-small mechanisms such as panel composition, case allocation, and the internal
flow o f case files matter (Leloup & Kxtsaf 2022).
Yet, the term judicial governance itself is often misunderstood and wrongly simplified
to decisions on the selection and promotion o f judges, or their disciplining and removal
(Malleson & Russell 2006; Lee 2011; B o b e k 2015; Castillo-Ortiz 2019). These issues are
important, but judicial governance is a m u c h broader field that concerns every single aspect
of courts' functioning, including efficiency, transparency, ethical issues, and a more mundane
day-to-day agenda o f court administration, as w e l l as more structural issues concerning the
relationship o f the judiciary w i t h the executive and the legislature.
In order to plausibly capture and understand the politics o f judicial governance, this chapter
therefore opts for a broad holistic understanding o f judicial governance developed in the latest
scholarship (BOrzel & Risse 2010; Kosaf 2018; Castillo-Ortiz 2019; Bunjevac 2020) that
defines it as ' a structured m o d e l o f social coordination which produces and implements a set
of institutions, rules, and practices which are collectively binding and w h i c h regulate h o w the
judicial branch exercises its functions' (Sipulova et al. 2022). Judicial self-governance then
captures the extent to w h i c h judges and courts participate in judicial governance.
W h i l e most scholarship on j u d i c i a l governance, quite understandably, focuses on personal
aspects concerning the careers o f individual judges, such as the selection, promotion, and
disciplining o f judges, the concept o f judicial governance is m u c h broader. In order to see the
developments within judicial governance more clearly, it is thus helpful to unpack j u d i c i a l
governance into smaller dimensions, each o f them raising a specific set o f issues and undergoing
potentially different development (Kosaf 2018; Bunjevac 2020).
Tentatively, there are eight such distinctive dimensions: regulatory, personal, administrative,
financial, educational, informational, digital, and ethical (Kosaf 2018; Bunjevac 2020;
Sipulova et al. 2022). These eight dimensions are visualised in Table 16.1. Each o f them
aggregates a set o f individual competences related to judicial governance.
So far, the most comprehensive list o f such competences has been introduced i n 'the
Judicial Self-Governance Index', an analytical tool measuring the participation o f judges in
individual dimensions o f judicial governance, irrespective o f the institutional design o f the
field (Sipulova et al. 2022). The Judicial Self-Governance Index relied mostly on competences
previously addressed or reflected by qualitative and quantitative scholarship4
deriving the
competences from existing literature on j u d i c i a l governance (Kosaf 2018), governance o f
4
Smithey and Ishiyama's index (2002) for example mentions regulatory dimension, Hayo & Voigt
(2016) indexed the selection, nomination, approval, and dismissal of judges. Gutmann & Voigt (2018)
correlated the transfer of judges and cases, and Feld & Voigt (2003) operationalised powers related to
the transparency and publication of case law as part of judicial governance. Similarly, budgetary arrange-
266 Research handbook on the politics of constitutional law
Table 16.1 Dimensions of judicial governance
I Regulatory Lompeiences related 10 establishment, abolition, or changes m the jurisdiction and procedural rules "
of a court
11. Adminislrative Composition of a courl (setting the number of judges, panels, and their composition), work
schedules, case assignment
IT]. Personal Selection and {reappointment of judges, promotions, removals, and transfers of judges (permanent
and temporary), disciplining of judges, civil and C-nrrtinal proseculion, evaluations of judges
LV. Financial Size of a court's budget, salaries of judges
V. Educational Compulsory education (plan and structure) and further training and education ofjudges
VI. Informational Publication of rulings, recordings of trials, annual reports, case assignment, disclosure of judges'
property, political affiliation, and some persona! information
VII. Digital Placemen! ofservers with online data
Vlll. Ethical Preparation and interpretation of the code of conduct, extrajudicial activities of judges,
coinmunication with media
Source: Šipulová et al. 2022.
agencies (Verhoest 2013; Lurie et al. 2020; Mathieu et al. 2017), judicial independence, and
effectiveness, as well as data collected by C E P E J 5
and E U Justice Scoreboard.6
The regulatory dimension relates to the entrenchment o f courts and judicial systems in the
constitution or statutory law. D u e to their regulatory character, the powers belonging to this
dimension (establishment or abolition o f courts, changes in jurisdiction and courts' structure,
statutes and legal procedural rules) are wielded mainly by legislative power (parliament). With
subsequent judicial empowerment, however, we have witnessed increasing, although formally
subtle, engagement o f courts, courts presidents, and judicial councils. Once established,
judicial councils (or potentially chief justices) can be consulted on any systemic legislative
changes in the regulation (Kosaf and Sipulova 2018). A l t h o u g h their positions are typically
not binding, they offer judicial actors' bodies an important channel for stepping inside the
regulatory framework and utilising informal powers and networks to influence this dimension
o f judicial politics.
The administrative dimension targets the seemingly mundane, day-to-day functioning of
courts: decisions on the number o f judges assigned to a court, the structure o f single- and
multi-judge panels, as well as their respective compositions. Administrative powers also
include the number and quality o f administrative personnel or clerks, oversight o f the system
o f case assignment (and reassignment), or evaluation o f courts' overall performance (quality
o f decisions, backlog, public spending). W h i l e the administrative dimension might seem
less salient than selection and removal processes, it actually significantly impacts both the
effectiveness of decision-making, as well as judicial independence itself. M a n y political or
third-party interferences, particularly in democratising regimes, attempt to utilise administrative
powers to shift the balance at courts and exert pressure on individual panels or judges.
ments, determination of judges' salaries, promotions, evaluations, and management of courts' tasks were
included in older indices of judicial independence (Van Dijk 2021).
5
European Commission for the Efficiency of Justice, regular evaluation of European judiciaries
available at https://www.coe.int/en/web/cepej.
6
A n E U tool, part of the Rule of Law Toolbox, available al hUps://ec.europa.eu/info/policies/justice
-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboarden.
Politics of judicial governance 267
Case allocation is particularly sensitive administrative issue as some players might be tempted
to attempt to assign their case to a friendly judge (Kosaf 2016; Marcondes et al. 2019).
The personal dimension naturally attracts the most political and scholarly interest and lies
at the vety heart of judicial governance. This dimension covers all decisions on selection, the
careers and removal of judges, including decisions on their accountability v i a disciplinary (or
criminal) motions. The dimension also covers the evaluation o f judicial performance and ties
it to decisions on financial bonuses and similar measures. The personal dimension is the most
contested one, as the transfer o f power to select judges from political branches o f power to
the judiciary itself has to fulfil both pragmatic (insulation from political pressure) as w e l l as
theoretical and doctrinal (democratic legitimacy) tests o f justification.
The financial dimension is much narrower and covers the financial or budgetary administration
o f courts: decisions on the size and allocation o f a court's budget and judges' salaries.
Financial competences are held almost exclusively by political actors, yet the distribution o f
power in this dimension is slowly attracting more attention and raising controversies in many,
at least European, jurisdictions.
The educational dimension captures decisions on the compulsory education and training o f
judicial candidates and judges. In recent years, w e have seen a significant transfer o f power
from the executive branch to judges and independent agencies (such as judicial academies and
associations) that took over many o f the educational competencies previously carried out by
ministries o f justice (Wittreck 2018; Levi-Faur 2009; L u r i e et al. 2019). There is a g r o w i n g
scholarship on judicial training (Dallara & Piana 2016), but the educational dimension has
usually not been connected to the broader phenomenon o f judicial governance (but cf. Parau
2018; Fagan 2019; Wittreck 2006; Benvenuti and Paris 2018). Y e t , actors w i e l d i n g educational
powers both decide on the structure and content o f these systems o f education and
significantly impact the pool o f potential candidates eligible for the office o f judge, as well as
create expectations on the quality and scope o f knowledge judges should have.
The informational dimension concerns the relationship between judges (courts) and the
public. Competences i n the informational dimension set out decisions on the extent o f transparency
and visibility of judicial decision-making (publication and communication o f cases,
annual reports, and statistics) but also on the personal affairs o f individual judges (disclosures
of property, party affiliations, etc.).
The digital dimension is a rather young aspect o f j u d i c i a l governance. It results from the
growing corpus of data and databases available at courts. F o r instance, the body that regulates
the where the servers with the case-law and internal court documents are located has
a wide-reaching impact both on the internal management o f courts, and on the de facto degree
of transparency courts can actually achieve (e.g. ability to manage their own clouds and
servers, or the opportunity to create new search engines). The digital dimension can thus also
contribute to the visibility and accessibility o f information on courts.
Finally, the ethical dimension is very closely related to various disciplinary mechanisms
against judicial misbehaviour. However, it is typically less formal, vested in the hands o f
a different actor (such as an ethical committee), and takes into account a different set o f considerations
than the traditional disciplinary measures. This dimension concerns, in particular,
decisions on the preparation and interpretation o f the code o f judicial conduct, communication
of judges w i t h media or public (Ginsburg and Garoupa 2009), and the regulation o f their
extrajudicial activities.
268 Research handbook on the politics of constitutional law Politics of judicial governance 269
E a c h o f these eight dimensions o f judicial governance has a different degree o f political
salience and a different relationship with judicial independence, accountability, diversity
efficiency, and legitimacy. The transfer o f some o f these powers from the political branches
to judges or 'fourth branch' institutions (and vice versa) can therefore be driven by different
considerations and goals. F o r instance, the delegation o f personal competences to judges
pursues the goal o f the insulation o f judges from political pressure, but it still requires some
extent o f political engagement to give judges legitimacy and prevent corporativism and judicial
corruption. Administrative competences are also predominantly held by judges, but in this
dimension it is often a pragmatic decision that results from judges' greater expertise in the
day-to-day functioning o f the judiciary, the informational gap between ministries o f justice
and court presidents, and the need for greater responsiveness from administrative governance
to the actual needs o f courts.
fn sum, it is necessary to study each dimension o f judicial governance separately and only
then to make claims about judicial governance as a whole, since it is quite possible that within
the same country several dimensions m a y undergo different development. Each dimension
o f governance might be organised around different interests, and individual competences can
be distributed among different sets o f actors (see Section 2). F o r instance, decisions on the
establishment, abolition, merger, division, and jurisdiction o f courts are typically under the
control o f the legislature, even though judges have increasingly gained the ability to comment
on and sometimes even shape j u d i c i a l reforms v i a judicial councils or other bodies, in which
they have the majority. Similarly, administrative decisions on the courts' functioning, such
as the overall number o f judges assigned to a court, the number and composition o f panels
at each court, the overall number o f administrative personnel and law clerks, case allocation,
and judicial performance evaluation, can be exercised by a variety o f actors - the executive,
the legislature, a judicial council, the Court Service, court presidents, the ' U S - s t y l e ' judicial
conference complemented by the Director o f the Administrative Office o f the U S Courts, or
the 'Israeli-style' Director o f Courts. In other words, it is necessary to understand the variety
of actors i n j u d i c i a l governance and their relationship, to w h i c h w e turn next.
2. ACTORS OF JUDICIAL GOVERNANCE: B E Y O N D THE
EXECUTIVE A N D JUDICIAL COUNCILS
The politics o f judicial governance is often narrated through the 'judges vs politicians' lenses.
The whole debate on the ideal distribution o f power is thus framed v i a the question, Which
branch of state power should have more powers in (a given dimension of) judicial governance?.
However, this false dichotomy prevents us from understanding the complexity of
actors, networks, and interests affecting judicial governance, and offers only a limited picture
o f h o w m u c h impact judges actually have on judicial governance.
The eight-dimensional structure o f judicial governance includes a constellation o f actors
and institutions, typically represented by state bodies, judges, lawyers, politicians, and what
we call 'judicial self-governance bodies': institutions established to take part i n individual
judicial governance competences, including at least one judge (Kosaf 2018). These are typically
judicial councils, court services, judicial appointment commissions, the Supreme Court,
the chief justice, court presidents, judicial associations, and judicial academies.
Understandably, judicial councils have attracted most attention recently, because they
are most visible and epitomise the judicial empowerment movement. They are also heavily
promoted by supranational institutions that have considered them as the best bulwark against
political interferences with the judiciary and an institutional guarantee o f judicial independence.
The burgeoning scholarship on judicial councils, w h i c h offers various categorisations o f
their strength and powers, showed though that their contribution to judicial independence or
the quality o f democracy is less clear and certainly not linear in all cases (Garoupa & Ginsburg
2015; Castillo-Ortiz 2019). Others show that their success is based on contingent circumstances
such as embedded n o r m o f professionalism in the Brazilian judiciary ( P o z a s - L o y o &
Rios-Figueroa 2023).
However, it is also necessary to stress that judicial councils still do not exist i n many countries,
and even i n those where they do, they offer only a fragment from the whole picture o f
how judicial governance works and h o w individual competences are organised among multiple
actors. A l t h o u g h we can observe a certain convergence o f supranational recommendations
towards the strong judicial council dominated by judges (see Section 4), the models o f judicial
councils established across the w o r l d are actually quite diverse. T h e y differ in composition
(ratio o f judges, politicians, and experts), powers (the number of judicial governance dimensions
they are involved in), as w e l l as i n actors with w h o m they share these powers. The same
claim applies to judicial appointment commissions, prevalent i n the c o m m o n law world, as
their rationale and design vary a lot from one country to another ( B I I C L 2015; Bunjevac 2020;
Brett 2022).
In fact, the mere existence o f a judicial council or a judicial appointment c o m m i s s i o n
does not tell us much about the participation o f judges i n the judicial governance, since in
all countries representatives o f the ministry o f justice, court presidents, the Supreme Court,
judicial associations, politicians, and/or prosecutors participate i n judicial governance to
a certain degree as well. This became even clearer during the C O V I D - 1 9 pandemic, when
the ministers o f justice used emergency powers to curtail court operation and shape j u d i c i a l
governance more broadly (Lurie 2021). The influence o f judges on judicial appointments is
not static either. M o d i ' s and Netanjahu's judicial reforms show that politicians want to regain
their powers and shape judicial appointments without the major input o f judges (Khaitan 2020;
Weiler 2023).
The most recent scholarly works have also documented the rise o f smaller actors such as
judicial academies, directors o f courts, and chief justices (Verhoest 2013: L u r i e et al. 2020;
Kosaf & Spáč 2021). Judicial networks, w h i c h operate on both domestic and transnational
level, became important actors o f j u d i c i a l governance (Dallara & Piana 2016), w h o are sometimes
criticised for the lack o f democratic legitimacy (Parau 2018). C o m b i n e d with the creation
o f new areas o f regulation, judicial governance is becoming a significantly decentralised
field w i t h a high level o f power distribution.
Interestingly, even in the countries where political branches still have the major say i n j u d i cial
governance, such as Austria, Czechia, and Germany, judges can play a significant role. In
Austria that is so because the k e y positions within the ministry o f justice are actually filled by
judges who are temporarily assigned to the ministry (Vasek 2022). In Czechia, it results from
the fact that the ministry o f justice informally delegated significant powers to court presidents
who, due to their expertise, are better equipped to supply the short-term needs o f judiciaries
(Blisa et al. 2018). Contrary to general w i s d o m , G e r m a n y also shows a significant dose o f
judicial self-governance, since it features as many as eight judicial self-governance bodies.
270 Research handbook on the politics of constitutional law
Germany just advances a different conception o f judicial self-governance (than a judicial
council model) w h i c h reflects the prevailing German understanding o f democratic legitimacy
and separation o f powers (Wittreck 2018).
This means that judicial empowerment is not a phenomenon exclusive to the establishment
o f judicial councils, but may permeate a l l institutional constellations o f judicial governance
(Sipulova et al. 2022). V i c e versa, the creation o f a strong judicial council dominated by
judges does not prevent the further engagement o f political actors injudicial governance as the
executive may still decide on the court budgets, regulate the internal functioning o f the court
appoint court presidents, or take part in the selection or promotion of judges.
In sum, three interim conclusions can be made. First, the model o f judicial governance does
not i n itself tell us who controls a given dimension o f judicial governance. Second, the division
o f competences between politicians and judges is never absolute. Instead, both politicians and
judges have a say i n j u d i c i a l governance. Judicial self-governance is thus a matter o f degree
and operates on the continuum rather than in the 'either-or' fashion. Third, judicial empowerment
is not necessarily linear, as many countries have recently witnessed pushbacks against
it (Uitz 2015).
These findings also suggest that the binary 'judges vs politicians' logic, employed by the
dominant judicial governance scholarship (Parau 2018; Castillo-Ortiz 2019; M i k u l i et al.
2019), is flawed because it ignores other actors o f judicial governance that do not come from
any o f these three branches o f power. V e r y recent scholarship has observed a new trend of
'agencification' (Lurie et al. 2019). The gradual growth in the powers o f many judicial governance
actors has been accompanied by the increasing autonomy o f their position vis-a-vis
the judiciary, the legislature, as w e l l as the executive (Jordana & Sancho 2004; M a t h i e u et al.
2017). This is very true even for some judicial councils and the perception o f their role by other
j u d i c i a l governance actors. In the end, the majority o f judicial councils are o f m i x e d composition,
opening up a vexing question w h i c h branch of power individual members represent,
or to what extent they execute their offices as completely independent agencies. Compared to
supranational recommendations, w h i c h clearly identify judicial councils as judicial bodies, the
question to be pursued by theoretical scholarship is what position individual actors of judicial
governance have within the system o f separation o f powers (Kadlec, Sipulova & Kosaf 2022).
3. CHANNELS OF POLITICISATION: OLD A N D NEW
The ideological alignment o f judges, especially at supreme and constitutional courts, is an
important benefit for every government. T o make it happen, the executive and the legislature
in the past often used their influence over the sword or the purse7
to shape judicial governance.
The Ministry o f Justice, the Presidential administration, and the monarchy, each in its own
way, found channels for politicising the judiciary. Politicisation o f the judiciary reached its
apex in the communist countries where the omnipotent Party carefully screened new judges,
kept the elected judges on a short leash b y short renewable terms and oversight b y the General
Prosecutor, dismissed or persecuted judges w h o dared to stand in the way o f the socialist
legality, gave instructions to judges on h o w to decide politically salient cases (a practice colloHamilton
in Federalist No. 78.
Politics of judicial governance 271
quially referred to as 'telephone justice'), and assigned those salient cases to reliable hard-core
communist judges in order to achieve the 'right' outcome ( K i l h n 2011; Ledeneva 2008).
In consolidated democracies, many channels o f politicisation o f the judiciary have closed or
have been exposed to public scrutiny. In the United States, the selection o f Article III federal
judges has remained deeply political, many aspects o f j u d i c i a l governance have been depoliticised,
and the decisions thereon transferred to the Judicial Conference o f the United States
and the circuit j u d i c i a l councils. In most C o m m o n w e a l t h countries, judicial appointment c o m missions
took charge o f many judicial governance issues. A similar trend o f g r o w i n g j u d i c i a l
self-governance took place in Europe and Latin A m e r i c a .
However, the creation o f a judicial self-governance body does not make the power disappear
or the dangers of politicisation evaporate. Power is just transferred to other hands and new
channels o f politicisation o f the judiciary are created. These channels differ from one jurisdiction
to another. European experience is particularly insightful in this regard. The Slovak
judiciary was politicised through the dominant role o f the C h i e f Justice in the j u d i c i a l council
(Spáč, Sipulova and U r b á n i k o v á 2018). The Polish judiciary has recently been politicised not
only b y the Minister o f Justice, but also through court presidents and the new members o f the
National Council o f the Judiciary elected by the parliamentary majority ( Š l e d z i ň s k a - S i m o n
2018). In France and Italy, the major channels o f politicisation o f the judiciary are not the
non-judicial members of their judicial councils, but judicial associations (Guarnieri 2004;
Benvenuti and Paris 2018; V a u c h e z 2018). A recent scandal in Italy showed that politicians
used judicial associations as a proxy for protecting their interests (Sallusti & Palamara 2021).
In Germany, the main channel o f politicisation is the promotion committees (Wittreck 2018).
In Hungary, the major channel o f politicisation o f the judiciary is the new National Office
for the Judiciary that took the k e y powers away from the Hungarian judicial council ( U i t z
2015). In Spain and Turkey, politicisation o f the judiciary has flourished due to the selection
of judicial members o f the judicial council by political branches. The difference is that w h i l e
the Spanish judicial council has been captured by political parties (Torres 2018), in Turkey
it is the presidential administration that currently has the major grip over the judicial council
(Call & Durmus. 2018).
Outside Europe, politicisation o f j u d i c i a l governance came from both the political branches
and the judiciary. W h i l e Hugo C h a v e z used virtually all means to get the Venezuelan j u d i c i a r y
under control (Taylor 2014), in M e x i c o it was the Supreme Court judges who created patronage
networks that maintained their grip over the judiciary (Pozas-Loyo & R i o s - F i g u e r o a 2 0 1 8 ) . In
Georgia, j u d i c i a l selection has been dominated by judicial oligarchies using judicial councils
to channel their power and influence (Tsereteli 2020). In China, the communist party controls
the courts v i a party committees, party meetings, and training, opening the floor to g r o w i n g
judicial corruption ( W a n g & L i u 2021). In Z i m b a b w e , president Mugabe employed several
techniques aimed to control the judiciary, from p a c k i n g the Supreme Court to the removal
of judges w h o refused to resign (Castagnola 2018). In Senegal, Uganda, and Madagascar,
attempts at judicial review o f election results led to episodes o f violence (Llanos 2015), assassination
(The Judiciary Insider 2018), or seizures o f judges' property (Llanos 2015).
In sum, the Ministry o f Justice model o f judicial governance is increasingly viewed as an
anachronism, a remnant o f the past that should be replaced by an autonomous self-regulated
and depoliticised judiciary ( M i k u l i et al. 2019). However, lessons from across the globe tell
us that judicial councils and other judicial self-governance bodies do not necessarily close the
channels o f politicisation o f the judiciary. Judicial councils can be captured not only from the
272 Research handbook on the politics of constitutional law Politics of judicial governance 273
outside (Popova 2010; Torres 2018), but also from the inside ( P o z a s - L o y o & Rios-Figueroa
2018, Spáč, Š i p u l o v á and U r b á n i k o v á 2018). Unfortunately, the Polish scenario also attests
that politicians always find some judges w h o are w i l l i n g to cooperate with them, no matter
how obvious the sinister intentions o f the judicial reform are ( Š l e d z i h s k a - S i m o n 2019).
4. STANDARDISATION, JUDICIALISATION, A N D
INTERNATIONALISATION OF JUDICIAL GOVERNANCE
There are three major trends in j u d i c i a l governance that go hand in hand: standardisation
judicialisation, and internationalisation. The standardisation encompasses various efforts to
unify certain aspects o f judicial governance and turn them into recommendations and later on
into universal or at least regional standards. A t the universal level it is difficult to find consensus
and thus there has been little progress since the United Nations Bangalore Principles of
Judicial Conduct (2002), despite the efforts o f the United Nations Special Rapporteur on the
independence of judges and lawyers. Other organisations and associations try to fill this gap.
M L Scopus International Standards o f Judicial Independence (2008) are probably the most
advanced.
A t the regional level, there has been more development recently, especially in Europe.
The V e n i c e C o m m i s s i o n , the European Commissions as well as the advisory bodies such as
the Consultative C o u n c i l o f European Judges and the European N e t w o r k o f Councils for the
Judiciary have produced dozens o f opinions, declarations, and reports on most aspects o f judicial
governance (Bobek & K o s a ř 2014; K o s a ř 2016; Parau 2018; E N C J 2 0 2 1 , D e Visser 2015).
E v e n more recommendations, guidelines, standards exist on the domestic level.
Once the standards are at place, courts have the benchmarks for reviewing the legislative
and executive acts concerning the judiciary. This i n turn reinforces judicialisation of judicial
politics. O f course, constitutional tribunals and supreme courts reviewed judicial reforms
that interfered with judicial interference even before the supranational standards emerged.
However, they usually focused on few selected issues such as disciplining, impeachment
and removal of judges. That is n o longer true, and we can see an increasing judicialisation of
other areas of judicial governance across the globe. The Canadian Supreme Court declared
the appointment o f its new member, M a r c o N a d o n , to be unconstitutional (Mathen 2015). The
Indian Supreme Court struck d o w n the constitutional amendment that changed the system of
selection o f supreme courts judges by transferring this power from the collegium o f supreme
court judges to the National Judicial Appointments C o m m i s s i o n (Sengupta and Sbarma 2018).
The Italian Constitutional Court formulated the basic principles o f constitutional conformity
for process o f cutting salaries o f judges.8
The Spanish Supreme Court abolished the salary
bonuses,' the German Federal Administrative Court allowed the judicial review o f case assign-
8
See Judgment of the Italian Constitutional Court sp. No. 223/2012 of 11.10.2012.
8
See Judgment of the Spanish Supreme Court no. 2004V30 (STS. 3") of 7, 3. 2006. See also ContinL
Francesco & Mohr, Richard. Reconciling Independence and Accountability in Judicial Systems. Utrecht
Law Review. 2007, vol. 3, no, 2, pp. 34-35.
jnent.1 0
In Central and Eastern Europe as w e l l as i n Latin A m e r i c a virtually every j u d i c i a l
reform ends up before constitutional courts too (Kosaf 2017; Sadurski 2019; H e l m k e 2017).
Judicialisation is further reinforced by internationalisation of judicial governance. In the
Global South, the W o r l d Bank and the International Monetary F u n d have been particularly
active in shaping domestic judicial governance by their rule o f law and judicial independence
initiatives (White 2009). M o r e recently, regional human rights courts, especially the European
Court o f H u m a n Rights and the Inter-American Court o f H u m a n Rights, have been increasingly
m o v i n g beyond their original mandates, and m a k i n g determinations about the design
of national courts and their governance, encouraging domestic judicial reforms (Kosaf &
Lixinski 2015; L e l o u p & Kosaf 2022)." In the European Union, the level o f internationalisation
and judicialisation o f judicial governance reached a whole new level after the European
Court of Justice abandoned its deference to M e m b e r States i n this area and delivered the landmark
Portuguese Judges judgment (Bonelli & Claes 2018). Since then, the European Court
of Justice developed a massive case law that set several requirements for judicial governance
in new as well as o l d European U n i o n M e m b e r States ( L e l o u p 2020; K o c h e n o v & Pech 2021,
Moraru & Bercea 2022; Kadlec & Kosaf 2022). The European Court o f H u m a n Rights tries to
catch up and these two supranational courts n o w thus engage in intensive cross-fertilisation of
judicial governance ideas that sometimes go too far ( L e l o u p & K o s a f 2022; Karlsson 2022).
O f course, not all countries are witnessing all o f these three developments, at least not to
the same degree. W h i l e European U n i o n contributed heavily to all three trends, the United
States have been resistant to all o f them. Other regions show that supranational pressure may
work well even without judicialisation. A typical example is Southern Africa, where several
countries replaced opaque informal appointment systems inherited from the colonial era by
merit-based system w i t h judicial appointment commissions (Brett 2022). Brett shows that
the rise o f the merit orthodoxy i n this region does not result primarily from judicialisation,
but rather from die m i x o f domestic and supranational pressures that reflect broader social
development i n the decolonisation context. Finally, these three developments do not get
through uncontested and are not irreversible. In fact, even within the European U n i o n there is
a considerable backlash against some o f these trends, for instance in K a c z i n s k i ' s Poland and
Orban's Hungary (Sledzinska-Simon 2018; Sadurski 2019; U i t z 2015). These two leaders
want to dejudicialise politics i n general and the politics o f judicial governance i n particular
(Petrov 2022).
What is important to note is, however, that all three trends largely ignore the complexity
of judicial governance as a field. Repeated political tinkering with courts' composition
and independence, and increasing democratic backsliding encouraged standardisation of
judge-dominated judicial governance and the vigorous judicial protection o f this judicial
design, but it overlooks the negative empirical experience o f post-communist, post-authoritarian
and developing countries (Hammergren 2002; White 2009; Kosaf 2018; Sipulova et al.
2022). The international standards, now backed by supranational courts, perceive j u d i c i a l governance
as best organised by judges, ideally in a j u d i c i a l council. This understanding is based
on a conflation of judicial interests w i t h interests in independent, fair and rule o f law governed
J 0
See the judgment of German Federal Administrative Court of 28. 11. 1975 (ßVerwGE 50, 11 =
NJW 1976, 1224).
1 1
The nature and effects of this European transnational judicial dialogue is further discussed by Law
in Chapter 17 of this volume.
274 Research handbook on the politics of constitutional law Politics of judicial governance 275
judiciary. Very few supranational bodies recognise and reflect threats o f corporativism and
judicial corruption, since they mostly rely on judges and self-governance as a bulwark against
political interferences.
5. JUDICIAL G O V E R N A N C E A N D INFORMALITY
It is generally accepted that there is a great deal o f informality i n politics, but this wisdom is
often forgotten when it comes to judicial politics. Informal exercise o f power politics injudicial
governance is perhaps even more important, as the decisions behind the closed doors in
this area o f governance may have significant repercussions for the rule o f law (Zgut 2022). It
is thus particularly important to discern what 'the proverbial room where it happens' is,1 2
who
sits at its table, and what informal rules those sitting at the table apply.
When discussing the engagement o f actors, transfers o f power, or politicisation channels
in judicial governance, we often noted de facto powers or the ability o f various players to
utilise their informal influence. From the conceptual point o f view, there are three standard
ways in w h i c h the scholarship engages with informality and informal institutions injudicial
governance: (1) through the prism o f constitutional conventions; (2) from the institutional perspective
w h i c h focuses on informal rules and practices; and (3) from a relational perspective
that studies informal networks.
Constitutional conventions are typically explored by legal scholarship (Stephenson 2021;
Sirota 2011). A l t h o u g h they are not framed as capturing the informal dimension o f judicial
governance,1 3
they do entail a large portion o f informality and rely on deeply rooted and
repeated practices and rules that do not have a clear bearing in the written law. The majority
o f constitutional conventions related to the area o f judicial governance revolve around the
selection and appointment o f apex courts' judges or chief justices (Melton and Ginsburg
2014), or questions o f judicial independence (Grove 2018). In Israel, the President appoints
judges ' i n accordance with the selection o f the Committee for the Selection of Judges.' The
unwritten convention is that the President is in fact bound by the opinion o f the Committee
and cannot deviate from the Committee's list. Similar practices have been recently confirmed
by the European Court of H u m a n Rights at the backdrop of Icelandic system o f appoinnnent
o f judges (Karlsson 2022). In Germany, a constitutional convention concerning the election
o f Federal Constitutional Court judges allocates each o f the major political parties a seat on
the B e n c h to nominate an occupant on (Taylor G . 2014; K i s c h e l 2015). The Supreme Court of
Canada recognised a constitutional convention related to remuneration o f judges as part o f the
rule o f law and judicial independence guarantees.1 4
In sum, constitutional conventions are typically unwritten, yet socially followed and perceived
as binding. T h e y fill the gaps in written law and sometimes even get 'absorbed by law'
(Sirota 2011), i f recognised as binding by domestic courts. For example, in 2020 the Supreme
Court o f Israel acknowledged the enforceable character o f the constitutional convention
according to w h i c h the Knesset appoints one governmental and one opposition member for
1 2
Hamilton musical.
1 3
Technically, conventions may include both formal and informal institutions. Therefore, they
cannot easily be categorised as a subgroup of informal institutions (Stephenson 2021; Sirota 2011).
" See Remuneration of Judges of the Provincial Court (PEl) [1997] 3 S C R 3 (SCC).
the two parliamentary seats in the Committee for the Selection o f Judges (Lurie 2022). The
major puzzle related to conventions is whether they are more fragile and vulnerable to arbitrary
change or expropriation and can easily lead to swift constitutional decay (lssacharoff &
Ivlorrison 2020), or to the contrary, whether they are so deeply embedded and socially shared
that they can resist the attempts to change them through new legislation.
On the other hand, informal institutions are a domain o f social science research. They are
often described as the invisible social glue o f political systems (Jakab 2020; D u n o f f & Pollack
2018), filling in the gaps o f formal regulation. T h e y are created outside officially sanctioned
channels ( H e l m k e & Levitsky 2004). Their interaction with formal rules and practices is quite
complex: they can complement, accommodate, but also compete with or even replace formal
institutions (Helmke & Levitsky 2006). They emerge either where formal institutions exist
but are incomplete, ineffective, too difficult to change, or contradictory to actors' (publicly
non-acceptable) goal ( H e l m k e & Levitsky 2005; L a u t h 2015), or in the space where formal
institutions do not exist at all (Lauth 2015).
Informal institutions are essential for judicial independence and the rule o f law. Depending
on their consonance with values underlying formal institutions, they can either subvert or
protect the rule of law and the quality o f democracy. The dissonance between formal and
informal rules and practices is sometimes described as the h o l l o w i n g out o f democratic institutions.
For example, 'gentlemen's agreements' between judicial associations may compete
with or even substitute for formal rules governing the selection and promotion o f judges
(Pierson 2000; P o z a s - L o y o & Rios-Figueroa 2018). These pacts may i n turn entrench patronage
(Guarnieri 2013; Benvenuti & Paris 2018; V a u c h e z 2018), nepotism (Spáč 2020) and
vertical gender segregation (Sofos 2020). Similarly, politically savvy chief justices can tweak
the formal rules and forge informal alliances w i t h politicians ( K o s a ř & S p á č 2021), with other
court presidents ( K o s a ř 2017), or with transnational j u d i c i a l networks (Dallara & Piana 2015;
Parau 2018). Informal practices like corruption (Popova 2012b), telephone justice (Popova
2012a; Ledeneva 2008), and clientelism (Popova & Beers 2020) may undermine existing
formal institutions.
On the other hand, many informal institutions also have positive effects. Well-functioning
informal institutions may increase the efficiency and quality o f judicial decision-making, and,
in the long run, also increase the resilience o f formal democratic institutions. Interestingly,
compared to legal research w h i c h perceives conventions as too susceptible to revision, social
scientists argue that informal institutions are more difficult to change (than formal frameworks)
because they are deeply embedded in social behaviour and less transparent to individual
actors (North 1991). Judges typically take part in various informal networks, learning best
practices across supranational levels (Dothan 2021). Overall, however, the informal rules and
practices with neutral or positive effects are much less explored, with only a few pioneering
studies engaging w i t h judicial associations and transnational networks, norms diffusion, and
inter-court dialogues.
Yet, the workings o f informal institutions, particularly in European jurisdictions, are heavily
under-studied. The existing scholarship so far has focused mostly on negative repercussions
of informality in Latin A m e r i c a (Pozas-Loyo & Rios-Figueroa 2018) and South-East A s i a
(Dressel, LIrribarri & Stroh 2017; Harper & C o l l i o u 2022) and the detrimental effects o f corruption,
nepotism, and patronage on selection processes and judicial independence. O n l y a few
studies have explored the role o f judicial culture in democratic decay in European countries
(Jakab 2020; Zgut 2022), or the role o f informal networks in selection processes i n the U S A
276 Research handbook on the politics of constitutional law Politics of judicial governance 277
( B i r d & M c G e e 2022). T h e largest number o f studies on informality engaged w i t h probability
and patterns of judicial decision-making (Randazzo 2008).
Overall, a little more attention, although largely incidental, has been paid to informal networks
created among actors o f judicial governance. From the relational perspective (Dressel
Urribarri & Stroh 2017), it is important to acknowledge that judges are embedded in various
circles of social interactions and their behaviour (on and off bench) is shaped by relational
flows in networks to which they belong. This observation is mostly ignored by legal scholarship
as well as the supranational approach to judicial governance, that prefers to see judges
as independent, autonomous on other actors, and unburdened by any polarising interests apart
from the delivery o f justice. A s studies from the post-communist countries however show
judicial networks and networks judges take part i n significantly shape clientelistic relations
inside the judiciary, and manage to deform the results o f formal designs o f merit-based selection
processes (Tsereteli 2022).
Although the relational perspective allows us to see also many positive informal institutions,
leading to stronger judicial dialogues, social responsiveness, or the legitimacy o f courts,
it is the networks interfering in judicial independence that attract more academic interests.
Yet, uncovering extra-judicial networks (connections o f judges to politicians and third actors)
is extremely difficult. W h i l e Tiinde H a n d o ' s proximity to V i k t o r Orbán is well known (Uitz
2015), to uncover such informal relations i n other jurisdictions might be extremely difficult,
yet crucial. F o r instance, in Slovenia one can hardly assess the functioning o f the judicial
council without k n o w i n g about the dense web o f informal networks that made important
decisions outside the judicial council (Avbelj 2018). In France, Italy, and Spain it is crucial
to k n o w w h o belongs to w h i c h j u d i c i a l association ( V a u c h e z 2018; Benvenuti & Paris 2018;
Torres Perez 2018). In Czechia court presidents have created several informal groups that have
a major say in key areas o f j u d i c i a l governance (Blisa et al. 2018). Informal networks may
also affect different stages o f the recruitment o f judges, in both Europe ( S p á č 2018) and the
Americas. The rules and practices created within these networks can completely replace existing
formal arrangements. For example, gentlemen's agreements between judicial associations
more or less replaced formal rules on the selection and promotion o f judges i n M e x i c o (Pierson
2000; P o z a s - L o y o & Rios-Figueroa 2018), and significantly deform selection processes
in Italy (Benvenuti 2018). In the post-communist area, politically savvy chief justices still
manage to tweak the formal rules and forge informal al liances with politicians ( K o s a ř & Spáč
2021; Tsereteli 2022), w i t h other court presidents ( K o s a ř 2017), or with transnational judicial
networks (Dallara & Piana 2015; Parau 2018) In China, institutional proximity between the
Party, the administrative apparatus, and the courts facilitated judicial corruption ( W a n g & L i u
2022).
Fortunately, recent political science scholarship has made significant progress in conceptualising
and analysing such informal networks (Dressel, Urribarri & Stroh 2017, 2018), and
it is high time to apply these insights in legal scholarship and, even more importantly, in
practice. A s w e have demonstrated above, supranational bodies, particularly t w o European
courts, are increasingly active i n shaping the regulation and policies of judicial governance.
Yet their monitoring o f institutional systems remains blind to the informal sphere o f politics
(Zgut 2022). A s we have demonstrated in this section, informal institutions are difficult to
capture and change; however, they are crucial for understanding h o w the judiciary w o r k s in
practice and they play an indispensable role i n the effective and efficient function ing o f formal
democratic frameworks.
JUDICIAL G O V E R N A N C E A N D GENDER DIVERSITY
Judicial governance can serve many goals. Constitutional and supranational courts tend to
e mphasise judicial independence and the rule o f l a w . " However, new public management
expects courts also to become accountable, transparent, efficient, and quality-oriented. Judicial
governance thus should deliver, and in fact balance, these often-competing values ( M a k 2008;
Dunoff & Pollack 2017). T o make things even more complicated, there is a g r o w i n g consensus
that courts should attend to the challenges o f equality and diversity (Malleson 2009; Resnik
2021). Hence, judicial governance should be designed to promote not only the rule o f law and
new public management values, but also diversity o f the judiciary (Malleson 2009; Grossman
2012; Rackley 2013). Gender diversity has gradually become the most prominent, albeit not
the only one (Resnik 2021; Weinshall 2022), issue i n diversifying the judiciary.
It is worth noting that the idea o f (gender) diversity on the bench is generally accepted
irrespective o f its eventual impact on courts' decision-making, since the evidence on whether
female and male judges decide cases differently is still conflicting ( B o y d at a l 2010: 392;
Peresie 2005: Tate & Handberg 1991; Songer and Johnson 2007; W e i n s h a l l - M a r g e l 2 0 1 1 ;
Eisenberg et al. 2012). The arguments for gender diversity typically include positive effects on
public trust i n the judiciary (Resnik & D i l g 2006), structural impartiality o f courts (Lawrence
2010; Chen 2003), a better diversity o f experience and knowledge (Weinshall 2022; Resnik
2021), following by increased quality due to the enlarged pool o f candidates (Rackley 2013;
25-27).
However, until recently, gender aspects o f judicial governance have been underresearched
and most studies on female judges focused primarily on descriptive gender representation and
barriers for access o f women to judicial profession ( A r a n a et al. 2021; Arrington et al. 2021).
This research explains women's access to courts with different structural and institutional
factors that are often interrelated. Female judges benefit from (1) improved educational possibilities
i n l a w for w o m e n increase the p o o l o f eligible w o m e n judges (Williams and Thames
2008; Sonnevold 2017; Sonnevold &. Lindbekk 2020), (2) changes in cultural gender norms
towards leadership and family life (Duarte et al. 2014; H a r w a 2016), and (3) recruitment o f
judges based on transparency, objective merit-based criteria, and formal rules rather than on
discretion, opaqueness, and informal patronage networks that tends to benefit men (Schultz &
Shaw 2013; K e n n e y 2013; B o i g e o l 2013). In other words, introducing more merit-based and
transparent appointment procedures forjudges based on competitive examinations has often
helped w o m e n circumvent the largely male power networks that previously excluded them
from the judiciary (Toraasen 2022).
The problem of access o f women to the judiciary permeates most c o m m o n law countries.
Civil law countries fare better in terms o f overall gender representation in courts. However,
if w o m e n have the same chances to enter the judiciary, it does not necessarily mean that they
will progress like their male colleagues. Several studies actually show that in judiciaries
with majority o f female judges w o m e n still face 'glass ceilings' and struggle to reach the
apex courts (Valdini & Shortell 2016; G o l d a r 2020). The barriers to progress are similar to
barriers of access, namely (1) opaque and informal process o f promotion of judges (Zheng et
al. 2017, P o z a s - L o y o & Rios-Figueroa 2018; E s c o b a r - L e m m o n et al. 2021) and (2) gender
See above.
278 Research handbook on the politics of constitutional law Politics of judicial governance 279
norms resulting in different work-life balance o f w o m e n and men (Schultz 2013; Kalem
2020; Havelkova et al. 2021). A similar partem applies to other important positions within
the judiciary such as the chief justices and court presidents that tend to be dominated by men
(Havelkova et al. 2021), even though A f r i c a shows that a considerable progress is possible
even this area ( D a w u n i & K a n g 2015). Nevertheless, w o m e n still face more obstacles i f they
want to reach positions o f power and influence within the judiciary.
So far only few studies analysed the impact o f introducing expert bodies on gender rep.
resentation. Existing studies concern mostly c o m m o n law countries and judicial appointment
commissions or merit commissions (Iyer 2013; B l a c k w e l l 2017; Dawuni & Masengu 2019Masengu
2019; E s c o b a r - L e m m o n et al. 2021). They tell a cautionary tale. While replacing
the executive models o f judicial governance by judicial councils and judicial appointment
commission might professionalise the selection and promotion o f judges, it may do so slowly
and incrementally (Iyer 2013) or only i f other conditions are met (Malleson 2006). Moreover
expert bodies do not necessarily eradicate privilege and power dynamics since they may create
a different type o f dynamic that can be harmful for w o m e n (Masengu 2019). The existing
research also shows that there is no one size fits all solution for consolidated, developing
and post-conflict societies with w i d e l y diverging general gender norms. Counterintuifively,
in some countries 'gender-neutral' judicial reforms aimed at strengthening the judiciary or
the bureaucratisation o f the judiciary have done more for w o m e n ' s judicial representation
than explicitly gender-targeted policies that often meet stiff resistance (Jasper 2022; T0raasen
2022). Finally, to our knowledge, the role o f gendered norms in other areas of j u d i c i a l governance
beyond the selection and promotion o f judges such as case assignment, composition of
panels, judicial training, and extrajudicial activities of judges has not been studied thoroughly
at all. Future research should explore these areas systematically as w e l l .
7. CONCLUSION
The development o f dynamics i n j u d i c i a l governance have mirrored the rise, pushback, and
backlash against judicialisation politics and the increasing importance o f the courts. In a few
decades we have seen a shift from executive-led judicial governance models to judicial
councils and other judge-dominated bodies (judicial self-governance) and, more recently,
attempts to dilute judicial power in the governance and administration o f courts by including
civil society members and other non-partisan actors and to construct j u d i c i a l councils as more
autonomous agencies standing beyond all three state powers.
C o m p a r e d to international optimism accompanying the b o o m o f judicial councils, recent
empirical studies suggest that reliance on judge-dominated judicial governance is very problematic
(Bobek and K o s a ř 2014; B o b e k 2015, K o s a ř 2018; Spáč 2020; K o s a ř and S p á č 2021;
Š i p u l o v á et al. 2022), that it does not bring with it more efficiency or judicial independence
(Gutmann & V o i g t 2018; Hayo & V o i g t 2016), nor does it offer better protection from political
interferences ( V a r o l et al. 2017). Strikingly though, in particular European supranational
policies seem to continue ignoring these findings.
In this chapter we have p r o v i d e d a bird's eye v i e w o f the key policies and most contested
issues o f judicial governance. First, the judicial governance field is broad and should not be
conflated with the selection and disciplining o f judges. A s w e have demonstrated, it has dozens
of areas organised in various dimensions whose importance is gradually increasing. Second, it
• a multi-actor field. Recent trends demonstrate that we need to look beyond judicial councils
a s even i n governance models with judicial councils, several other actors, from ministries o f
justice to judicial academies, retain significant powers.
Third, the dynamics o f judicial governance or the rise o f judicial councils cannot anymore
be explained solely through the binary judges vs politicians logic. Empirical experience from
several countries suggests that (a) judges hold significant powers i n ministerial as well as judicial
council models, they are nested inside various bodies with m i x e d composition, and none
of these actors operates in a vacuum - instead, they cooperate and share judicial governance
powers; (b) studies from non-European regions suggest that the proliferation o f j u d i c i a l councils
was, in fact, motivated not by power distribution within the three branches, but b y social
and supranational pressure (Brett 2022; Garoupa 2022).
Fourth, we noted two trends, agencification and power de-concentration, in the field o f
judicial governance, w h i c h suggest that individual judicial governance actors can no longer
been squeezed into the three traditional state powers. Instead, they increase their autonomy
gradually become a guarantor institution rather than body that represents any o f the three
traditional branches.
These considerations are important for a proper understanding o f the power dynamics in the
judicial governance field, particularly in the face o f increasing challenges to judicial councils
based on pragmatic (willingness o f politicians to capture and control the courts) and normative
(lack o f legitimacy o f courts to govern) considerations.
As we have demonstrated i n this chapter, j u d i c i a l governance is a highly complex phenomenon
the contours o f w h i c h go far beyond the selected model o f court administration, since even
judges in the Ministry o f Justice model o f court administration can have significant powers.
The number o f actors and agencies that participate i n judicial governance has gradually
increased, and has brought more expertise and less partisanship into the field (Kosař and S p á č
2021; K o s a ř and B l i s a 2018), Accordingly, the focus o f scholarship on judicial governance
and politics should be redirected from judicial councils to other actors.
A t the same time, judicial councils require more theorising. W h i l e i f well designed they
can eliminate some political interferences, they are also k n o w n to freeze informal rules and
practices present within the judiciary. This brings us to the need to reconceptualise judicial
councils at the backdrop o f new literature on the fourth branch institutions and autonomous
agencies (Tushnet 2021; Khaitan 2022). More attention should be paid to the perceptions and
expectations o f judicial councils i n respect o f interests they should represent (as a p a r t o f the
judiciary, a coordination body between representatives o f all three branches, or a post-branch
institution that is completely autonomous on any o f classical three powers, K a d l e c , Š i p u l o v á
and K o s a ř 2022).
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