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IS THERE A CONNECTION BETWEEN THE APPOINTMENTS PROCESS AND DECISION-MAKING?

The appointment processes differ in their mix of a few factors. First, the accountability of the decision-makers varies. In general each process has some connection to the electorate, though the identity differs, with a prime minister essentially alone in some cases and elected legislators taking a role in others, and with India an outlier as the main actors are the judges themselves. Second, some countries strive for a balance of decision-makers such as through explicit combinations of different representatives of different groups. For others, the decision is either explicitly made by a single actor (the prime minister) or could be dominated by one party such as where the president and Senate majority are from the same party. Third, some processes are more transparent than others— much though not all of the uS process is public as opposed to almost none in the current Canadian process. Finally, some appointment processes are more overtly political—with the united States again being the most extreme example.

These differing mixes may lead to different types of judges being appointed. It may be, for example, that a process with greater balance in its decisionmakers leads to judges with less extreme views or more willingness to cooperate. A more political process may yield judges who are more ideological or more willing to decide in line with those views. The process therefore may alter not only who decides but how they decide. Three questions spring to mind: do some appointment processes produce judges more likely to decide in line with their political views? If we look across all the different processes, are the political views of the judges connected to the political views of whoever appoints them? Finally, are some appointment processes more likely than others to yield judges who cooperate with each other? We will examine each of these questions in turn, using both existing empirical work as well as our own analysis to answer this question.[1] As we will see, the results are not clear-cut, in part due to weaknesses in the data, but there are interesting connections between the processes and the judges.

  • [1] See Appendix A for a description of the databases.
 
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