Mixed Judicial Selection and Constitutional Review

Abstract

Almost half the constitutional court judges worldwide are selected by a mixed selection system, whereby a specific number of judges are selected by different government institutions. What are the implications of this selection method and its variations for judges’ individual choices on constitutional review cases? An examination of vote choice on the Chilean and Colombian constitutional courts indicates that judges’ decisions to strike down laws are explained more by their and other colleagues’ institutional selector than their political party associations. The results call into question traditional judicial behavior models by suggesting that judges with different selectors have distinct voices when adjudicating constitutional questions which in turn enhances the deliberative process. However, the results also raise concern that certain selecting institutions may have a more significant voice in vetoing legislation than afforded them in the regular legislative process.

We did not see it coming: The unintended polarization induced by an institutional reform. The case of the Chilean Constitutional Tribunal

“…Now, these distinctions usually become blurred in the case of constitutional courts (Georgakopoulos, 2000), where judges can be selected by recognition even if the predominant procedure in the country is based on a career judiciary. And it is precisely here that political ideology becomes a relevant issue (Tiede, 2020).…”

“…Unlike Tiede (2016Tiede ( , 2020 we do not only focus on dissent as a standalone indicator of judicial behaviour, but move on to map that into a traditional left-right ideological dimension and show, longitudinally, how judges have increased their polarisation over time.…”