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* Lee Epstein isthe Edward Mallinckrodt Distinguished University Professor of Political Science and Professor
of Law at Washington University in St. Louis; Jack Knight is the Sidney W. Souers Professor of Government
and Chair of the Department of Political Science at Washington University in St. Louis. We thank the Center
for New Institutional Social Science for supporting our work on judicial selection and Michael Popovich and
Tobias Gibson for research assistance. Please e-mail comments to Epstein at: epstein@artsci.wustl.edu.
We used SPSS and STATA to analyze the data. All data and documentation necessary for replication
may be found at http:/Awww.artsci.wustl.edu-poliscVepstein/research.
1See Matthew D. Adler, Can Constitutional Borrowing be Justified: A Comment on Tushnet, 1 U. PA.
J. CONsT.L. 350, 351 (1998). Adler notes, what is borrowed "could be any part, large or small, of
the constitutional regime: a single sentence in the text of the constitution, a whole article in the
constitution, a judicial doctrine interpreting some part of the constitution's text, a set of formal or
informal understandings among legislators, the executive branch, or even among the population
at large as to what the constitution requires."
2
See, e.g., A. E. Dick Howard, The Indeterminacy of Constitutions, 31 WAKE FOREST L. REv, 383
(1996); Heinz Kiug, Model and Anti-Model: The United States Constitution and the "Rise of World
Constitutionalism," 2000 Wis. L. REv. 597; RErr R. LurnWKowsKm, CoNsTrrrrroN-MAUNG [N ThE REGiON
OF FORMER Sovi'r DOMINANCE (Duke Univ. Press 1996).
3
See, e.g., Anne-Marie Slaughter, JudicialGlobalization, 40 VA. J. INT'L L. 1103 (2000).
4
See, e.g., Developments in the Law-The InternationalJudicialDialogue When Domestic Constitutional
Courts join the Conversation, 114 HARe. L. REv.2049 (2001) [hereinafter Developments in the Law];
Claire L'Heureux-Dube, The Importance of Dialogue:Globializationand the InternationalImpact of the
Rehnquist Court. 34 TULSA L.J. 15 (1998).
o Oxford University Press and New York University School of Law 2003, 196
ICON, Volume 1,Number 2,2003, pp. 196-223
See, e.g., Imre V6r6s, Contextuality and Universality: ConstitutionalBorrowingson the Global Stage-
The HungarianView. 1 U. PA. J. CoNST. L. 651 (1999).
6
See. e.g.. Alexander Somek. The Deadweight of Formulae: What Might Have Been the Second
Germanizationof American Equal ProtectionReview, 1 U. PA. J. CONST. L. 284 (1998); Hoyt Webb,
The Constitutional Court of South Africa: Rights Interpretation and Comparative ConstitutionalLaw,
1 U. PA. J. CoNST. L. 205 (1998).
7
See, e.g.. Mark Tushnet, Returning With Interest: Observations on Some Putative Benefits of Studying
ComparativeConstitutionalLaw, 1 U.PA. J. CoNsT. L. 325 (1998).
s See, e.g.. Azizah Y. al-Hibri. Islamic and American Constitutional Law: Borrowing Possibilitiesor a
10
See, e.g., Jeremy Sarkin. The Effect of"Constitutional Borrowingson the Draftingof South Africa's Bill
of Rights and Interpretationof Human Rights Provisions, 1 U. PA. J. CONsT. L. 176 (1998); Somek,
supra note 6: Vor6s, supra note 5: Webb. supra note 6. Possible exceptions here, interestingly
enough, are studies that ask why the U.S. Supreme Court does not borrow or, at least, seems
"ambivalent" about borrowing constitutional decisions from other societies. See Ackerman, supra
note 9; Developments in the Law. supra note 4: Jackson, supra note 9: Vernon Valentine Palmer,
Insularity and Leadership in American ComparativeLaw: The Past One Hundred Years, 75 TuL. L. REv.
1093 (2001). Then again, because at least some of these studies focus exclusively on nonborrow-
ing. they too select on the dependent variable--especially in light of evidence that, in fact. the U.S.
high court does borrow (meaning that variation exists). See Fontana, supra note 9.
In making this specific claim, we assume that actors canvass practices elsewhere when making
their choices-an assumption that has an abundance of support. See Choudhry supra note 9; Jon
Elster, Constitutionalismin Eastern Europe: An Introduction, 58 U. Cm. L. Ray. 447 (1991): Tushnet,
supra note 9.
Table I Judicial selection systems used in the former Republics of the Soviet Union
Notes: (1) This table displays countries according to a very rough geographical mapping:
(2) Different procedures may be used for the nomination and appointment of the chief justice.
first, to think theoretically about matters of institutional design, about the cir-
cumstances that lead societies to borrow and not borrow; and, second, to
assess the implications of the theory against evidence drawn from the world.
These are the twin tasks that we take up in this article. On our theoretical
account, decisions over whether to borrow or not, and from where-at least
with regard to mechanisms governing the selection and retention of justices
serving on (constitutional) courts-are decisions about institutional design.
Such decisions, as we suggest above, are not a function of societies that are
always, or merely, or reflexively borrowing from one another. Rather we must
analyze borrowing-institutional choices, really-as a bargaining process
among relevant political actors, with their decisions reflecting their relative
influence, preferences, and beliefs at the moment when the new institution is
introduced, along with (and critically so) their level of uncertainty about
future political circumstances.
Among the interesting predictions our account yields is the following,
which centers on the relationship between uncertainty and the institutional
preferences of the dominant political actors in a society. As uncertainty about
future political prospects increases, preferences for institutional rules govern-
ing judicial selection that lower the opportunity costs of justices (the political
and other costs justices may incur when they act sincerely) also increase. In
other words, political uncertainty will lead dominant political actors to prefer
selection and retention mechanisms that many scholars associate with judi-
cial independence (e.g., life tenure or long terms of office). Under certain con-
ditions, the converse also holds. As uncertainty decreases, dominant political
actors may be more inclined to create institutions that increase opportunity
costs. This follows from the intuition that designers who believe they will
remain in power will also hope to inculcate a beholden judiciary.
In the second part of the article we explore these predictions with observa-
tions gathered from the American states and the former republics of the Soviet
Union. 2 While our analyses are far from comprehensive, they are suggestive:
just as our account anticipates, choices regarding institutions are not merely
reflexive but reflect the preferences and beliefs of the actors making the choices.
constitutional court justices, 15 makes this clear: only six guarantee life tenure;
the other twenty-one opted for limited terms of two varieties: renewable and
nonrenewable.' 6 And this holds beyond Europe, as well. In South Africa, for
instance, justices hold office for a single twelve-year term; in the Korean
Republic, justices serve for a set, albeit renewable, term.
Variation is not the only reason for our focus on choices of judicial selection
and retention systems. Another centers on the importance of those choices.
While we do not believe that these institutions completely determine the types
of men and women who will serve on constitutional tribunals and, in turn,
the choices they, as justices, will make, we-as well as mcany other scholars-
do believe they help structure both. 1 9 Some commentators, for example, assert
that providing judges with life tenure leads to a more independent judiciary-
one that places itself above the fray of ordinary politics 2° -while those systems
l5The twenty-seven countries are Albania. Armenia. Austria. Azerbaijan. Belarus, Bulgaria.
Czech Republic, Croatia, Estonia, France, Georgia, Germany, Hungary, Iceland, Ireland, Italy.
Latvia, Lithuania, Macedonia, Malta. Moldova, Poland, Romania, Russia, Slovakia, Slovenia, and
Ukraine. For more details, see ComparingjudicialSelection Systems, supra note 14.
16 Under the former, a justice is able to serve one or more additional terms if she attains approval.
typically from whatever bodies appointed her in the first instance. Under nonrenewable tenure
systems, once the justice completes his term, he may not be reappointed.
17 Source: Comparingjudicial Selection Systems, supra note 14.
18 Counts all countries with life tenure, including those with compulsory retirement provisions.
19 Paul Brace & Melinda Gann Hall, IntegratedModels of Dissent, 55 J. PoL. 914 (1993); Stephen B.
Bright & Patrick J. Kennan, judges andthe Politics of Death:Deciding between the Bill of Rights and the
Next Election in CapitalCases. 75 BU. L. REV. 759 (1995); SHELDON GOLDMAN, PICKING FDERAL JUDGES:
LOWER COURT SELECTION FROM RoosEvELT THROUGH REAGAN (Yale Univ. Press 1997); Melinda Gann
Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 1. POL.
1117 (1987) [hereinafter Constituent Influence]; DANRE R. PiNELmw. THE IMPaCtOF JuOicaAL-SELEcrIoN
MErHOD ON STATE-SUPREM E-Coulr Pouc. INNOvATION, REACTION. AND ATaOHY (Greenwood Press
1995): CHARLES H. SHELDON & LINDA S. MAUL, CHOOSING JusTIcE: THE REcRIJITMENT OF STATE AND
FEDERAL JUDGS (WS.U. Press 1997); MARY L. VOLcANsEr & JAcQuELuNE LuciENNE LAFON, JUrcAL
SELECTION: THE Caoss-EvoLtnoN OF FRENcH AND AmEuCAN PRAcTIcES (Greenwood Press 1988).
20
Steven P Croley, The MajoritarianDifficulty: Elective Judiciariesand the Rule of Law. 62 U. CHI. L.
REv 689 (1995); JEFFREY A. SEAL & HAROLDI. SPAm, THE SUPREME COURT AND THE ATruDiNAL MODEL
(Cambridge Univ. Press 1993); Harris v. Alabama, 513 U.S. 504, 515 (1995) (Stevens 1., dissent-
ing): Scott D. Wiener. Popularjustice: State Judicial Elections and ProceduralDue Process, 31 HARv.
C.R.-C.L. L. REv. 187 (1996).
that subject justices to periodic checks conducted by the public or its elected offi-
cials, may create a more accountable judiciary. And ample empirical evidence
exists to support at least some of these beliefs, including data showing that pop-
ularly elected justices are more likely to suppress dissents 2 1 and reach decisions
that reflect popular sentiment 22 than are their appointed counterparts.
To us, though, these are merely examples of a more general phenomenon:
particular types of institutions governing judicial retention are more likely
than certain others to induce sophisticated behavior (that is, behavior that is
not in line with their sincere preferences) on the part of actors-such that
the greater the accountability established in the institution, the higher the
opportunity costs for justices to act sincerely, and, thus, the more extensive
23
sophisticated behavior will be.
21 Brace & Hall, supra note 19: RPicARD A. WATSON & RONDAL G.DOWNING, Tim Pourcs OF THE BENcH
AND THE BAR: JUDICIAL SELECTION UNDER THE MISSOURI NONPARTISAN COURT PLAN (Wiley 1969).
22
Croley supranote 20; Constituent Influence, supra note 19; PINeLLO, supra note 19.
23
See, e.g.. Brace & Hall, supra note 19: Paul Brace & Melinda Gann Hall. The Interplay of
Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice, 59 J. PoL. 1206 (1997);
Croley, supra note 20; PINEuO, supra note 19.
24
LEE EPSTEIN & THoMAs G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTs, LIBERTIEs,
AN JUsTICE (CQPress 4th ed. 2001); DANEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN
CONSTTUTON (West Pub. Co. 1990).
25 Alexander Blankenagel, The Court Writes its Own Law. 3 E. EuR. CONST. REv. 74 (1994); Herbert
Hausmaninger, Towards a "New" Russian ConstitutionalCourt, 28 CORNEL INT'L L.J. 349 (1995).
26 See EVAN HAYNES, THE SELEcrIoN AND TENURE OF JUDGES (The National Conference of Judicial
COuncils 1944), which actually traces controversies over judicial selection and tenure back to the
fourth century B.C. For examples and discussions of particular debates, see Paul D. Carrington,
Judicial Independence and DemocraticAccountability in Highest State Courts, 61 L. & CONTEMP. PROBS.
79 (1998); LAwRENcE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (Simon & Schuster 1973); Samuel
Latham Grimes, "Without Favor Denial, or Delay": Will North Carolina Finally Adopt the Merit
Selection of Judges? 76 N.C. L. REv. 2266 (1998); John M. Roll, Merit Selection: The Arizona
Experience, 22 ARIZ. ST. L.J. 837 (1990); Joseph H. Smith, An Independent judiciary: The Colonial
Background. 124 U. PA. L. RE. 1104 (1976); Martha Andes Ziskind, judicial Tenure in the American
Constitution: English and American Precedents.1969 Sup. Or.RE. 135.
But how do designers resolve these debates? Under what circumstances will
they "borrow" institutions-whether constitutional provisions over, say, judi-
cial selection or legal reasoning over, say, hate speech-from one society but
not another or chose not to borrow at all? Ultimately, what determines their
institutional choice?
Existing studies of constitutional borrowing offer a great variety of
responses to these questions, ranging from a practical need to look elsewhere
(owing to a lack of existing legal resources, for example, or of clarity in those
resources); to a normative belief in the inherent value of canvassing other
jurisdictions; to a concern with legitimizing particular decisions; to a yearning
to follow constitutional dictates; 2 7 to seeking a way to assess a means-end fit;
to an "accident"; or even to a "natural," perhaps "unconscious," desire to
borrow.28 But underlying these responses are two common themes. First, the
scholarly literature typically grounds its responses, empirically speaking, on
observations of borrowing done by courts or by constitutional framers, but not
both. This seems to reflect a view, expressed by Justice Antonin Scalia, among
others, that these are distinct activities. As Scalia wrote in Printz v. United
States,29 in which the American Supreme Court considered whether Congress
can compel local officials to carry out federal legislation, "comparative analy-
sis [is] inappropriate to the task of interpreting a constitution, though it was of
30
course quite relevant to the task of writing one."
While we venture no opinion on Scalia's normative position, we-along with
others3 1-take issue with the distinction he draws. If we conceptualize borrow-
ing (whether done by courts or framers) as part of a larger activity-designing
institutions to govern society-then, at least for purposes of explanation, we
need not differentiate between the two: any theory of institutional design ought
be able to account for both. The one we offer below attempts to do so.
27 According to Charles Fried, Scholars and judges: Reason and Power, 23 HARV. J.L. & PuB. POL'Y 807,
820 (2000), the South African Constitutional Court "has consistently taken [section 36.1 of the
South African Constitution] to require it to canvas[s] the work of constitutional courts in other
countries which meet the criteria of 'open and democratic societies.'" (Our emphasis: see also Webb.
supra note 6). The relevant portion of 36.1 reads: "The rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the limitation is reasonable and justi-
fiable in an open and democratic society based on human dignity, equality and freedom...."
Nonetheless, at least in its now-famous decision on capital punishment, S. v. Makwanyane 1995 (3)
SALR 391, para. 34 (CC), the justices said that they would have consulted such sources, absent the
constitutional provision, because of their "value." See also Developments in the Law. supra note 4.
28
Fontana, supra note 9; Developments in the Law, supra note 4; Kim Lane Scheppele, The
Accidental Constitution, Paper presented at Contextuality and Universality: Constitutional
Borrowings on the Global Stage. at the University of Pennsylvania Law School (1998); Tushnet,
supra note 9.
29
Printz v. United States. 521 U.S. 898 (1997).
30
1d. at 921, see also Choudhry, supra note 9.
31See, e.g., Fontana. supra note 9: Developments in the Law, supra note 4: Klug, supra note 2.
32
A few limited (though underdeveloped) exceptions exist. See Developments in the Law, supra note 4,
at 2061. which claims:
Many countries have significant political reasons for incorporating outside legal norms.
Some countries with unfortunate international reputations join the international judicial
dialogue to improve their status in the world community. For example. South Africa, which
once permitted apartheid, has relied on the jurisprudence of its Constitutional Court to
help demonstrate the nation's renewed commitment to civil rights. Other nations enter the
international judicial dialogue to increase their influence over the creation of international
norms. A desire for an authoritative role in the formation of international legal rules and
standards seems to have motivated the participation of the Canadian Supreme Court and
some European constitutional courts.
This is an interesting point but it is not clear what is actually motivating the courts: politics or
other factors.
33
LARRY C. BERKSON Er AL., JUDICIAL SEcnoN IN THE UNITED STATES: A COMPENDIUM OF PRoPOsALS
(American Judicature Society 1980); Larry C. Berkson, Judicial Selection in the United States: A
Special Report. 64 JUDICATURE 176 (1980): JAmES BRYc- MODERN DEolCAcss (Macmillan 1921);
Sheldon D. Elliott. Safeguards of Judicial Independence. Paper presented at the Fourth
International Congress of Comparative Law. Paris. France (1954): SARI S. Escovrrz Ir AL.. JUDICIAL
SaLECTrON AND TENURE (American Judicature Society 1975): FRIEDMAN, supra note 26; Daniel W,
Shuman & Anthony Champagne. Removing the People from the Legal Process: The Rhetoric and
Research on JudicialSelection and Juries, 3 PSYCHOL. PUB. POLY & L. 242 (1997); HARRY P. STUJMPF &
JOHN H. CUvER, THE POITICS OF STATE COURTS (Longman 1992): Glenn R. Winters. Selection of
Judges-An Historical Introduction,44 TEx. L. RE. 1081 (1966).
3'Take the example of Jefferson. who, under the standard story, pushed for an elected judiciary (or
at least a system in which judges must be reappointed, every six years. by the president and both
houses of Congress) to further democratic principles. To support their belief that Jefferson pushed
for an elected judiciary to further democratic principles standard storytellers often point to a letter
he wrote in 1820: "Our judges are as honest as other men, and not more so. They have, with
others, the same passions for party, for power, and the privilege of their corps. Their maxim is boni
judicis est ampliare iursidctionem, and their power the more dangerous as they are in office for life,
and not responsible, as the other functionaries, to the elective control." quoted in THE WemNc, S OF
THoMAs JEFFERSON 276 (Andrew A. Lipscomb ed., Thomas Jefferson Memorial Association of the
United States 1905). And, yet, Jefferson never expressed such democratic fervor prior to his presid-
ency; in fact, until 1803, he was an ardent supporter of life tenure for judges: "The judges...
should not be dependent upon any man or body of men. To these ends they should hold their
estates for life in their offices, or. in other words, their commissions during good behavior," quoted
in HAYNES. supra note 26, at 93-94. Why the conversion? A principled change of heart? Hardly.
Jefferson only discovered democracy and accountability for judges after learning of the U.S.
Supreme Court's decision in Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803). According to
HAYNEs. supra note 26. and VoIcANsEK & LAFON. supra note 19, if he could not control policy pro-
duced by appointed, life-tenured judges at least he could give control of their tenure to a group that
did support his views, the electorate.
3
5 LAwRENce M. FRIEDMAN, A HISTORY OF AMERICAN LAw 124-25 (Simon & Schuster 1985).
36
See text accompanying note 30.
37
Printz, 521 U.S. at 976-77 (citations omitted).
38
For a nuanced interpretation of the differences between Scalia and Breyer in Printz.seeTushnet,
supra note 7.
39 492 U.S. 361 (1989) (involving the constitutionality of the death penalty for minors).
40487 U.S. 815, 868-69 n.4 (Scalia I., dissenting).
For nearly a century and a half, courts in the United States exercising the
power of judicial review had no precedents to look to save their own,
because our courts alone exercised this sort of authority. When many
new constitutional courts were created after the Second World War,
these courts naturally looked to decisions of the Supreme Court of the
United States, among other sources, for developing their own law. But
now that constitutional law is solidly grounded in so many countries, it
is time that the United States courts begin looking to the decisions of
other constitutional courts to aid in their own deliberative process. The
United States courts, and legal scholarship in our country generally,
have been somewhat laggard in relying on comparative law and
decisions of other countries. But I predict that with so many thriving
Dimension 1 Dimension 2
Personal The polity
political future
High uncertainty Low uncertainty
(e.g., homogeneous (e.g.. polarizedpolity
polity or divided polity with predetermined
with no predetermined outcome)
outcome)
clear and conflicting preferences that would present obvious targets for politi-
cal mobilization. Alternatively, the electorate could be highly fragmented, con-
sisting of numerous small groups. In such circumstances, as long as no clear
and fixed lines for coalition-building are observable, the likelihood of success of
political mobilization remains unknown. The opposite extreme is one of low
uncertainty with regard to the polity, which may occur when the electorate is
polarized. While bases for polarization can vary, deep societal cleavages (in
particular, those of the ascriptive nature) are the most likely ones to incite
political mobilization and shape future policies.
Table 3 summarizes these ideas, representing graphically the two dimen-
sions and the outcomes particular combinations yield.
Each of the predicted outcomes requires a few words of explanation. At
least on our account, designers will prefer to "borrow" or select institutions
meant to induce a high degree of independence when their uncertainty levels
are the highest in both of the relevant dimensions (case I). At no other informa-
tion states would they be willing to devise retention and selection mechanisms
that lower the opportunity costs to the same extent. By the same logic, com-
bined low uncertainty in both dimensions will lead to a preference for the
most-accountable (dependent) courts, with selection/retention systems generat-
ing the highest opportunity costs for the judges (case IV).
The two intermediate cases are those in which there is high uncertainty on
one dimension and low uncertainty on the other. If there are differences in the
49
Adapted from Selecting Selection Systems, supra note 47.
types of courts established in these two cases, they will be a function of how
the designers weigh the relative importance of the two dimensions. For
purposes of this discussion, we have assumed in table 2 that uncertainty in the
"polity" dimension will have a greater effect on the independence of courts than
will uncertainty in the "personal political" dimension. If this is the
case, then it leads to the following preferences over judicial institutions. In a situa-
tion of low uncertainty on the personal dimension but high uncertainty on the
polity dimension, relatively independent courts with selection mechanisms
bestowing authority on either the other branches of government or the elec-
torate will be preferred (case II); in a situation of high personal uncertainty but
low uncertainty about future politics, greater institutional constraints through
intermediate controls on judicial retention will be preferred (case ll).
With this background, we can now state our main hypothesis: in general,
as the combined index of political uncertainty increases, the likelihood that
the design of the court's selection/retention system will lower opportunity
costs for judges also increases. As a secondary hypothesis, we expect that, as
the overall level of political uncertainty in a given society and for the relevant
actors declines, any changes in selection/retention systems will serve to raise
opportunity costs for the judges.
2. Empirical sketches
Assessing rigorously these hypotheses is a challenging task. It requires us to
collect data on judicial selection and retention systems and to assess the oppor-
tunity costs associated with them. We also need to develop measures for
the concepts contained in our independent variables, the two dimensions of
political uncertainty ("personal political future" and "polity"). And, finally we
ought take into account rival hypotheses found in the literature on constitu-
tional borrowing.
In a future project we intend to undertake these chores. For this preliminary
attempt to assess our hypotheses, however, we provide only empirical sketches
of the choices regarding judicial selection and retention mechanisms made by
two societies operating in distinct political and social contexts: the American
states and the former republics of the Soviet Union.5 0 These sketches, by defini-
tion, do not provide conclusive support for our propositions but they do, as we
shall see, provide evidence consistent with them.
5°Our selection of these cases was no accident. We hope to demonstrate that our account-in a
nutshell, that greater political uncertainty leads to mechanisms of greater judicial independence,
and vice versa-not only operates in the American context (as many might suspect) but also
applies to democratic systems abroad. Of course, it is true that courts in other systems have vary-
ing degrees of power in areas of interest to their creators, raising questions about how those cre-
ators' interests may be tied to their constitutional courts. While this is beyond the scope of our
immediate concerns, suffice it to note that we believe our general account of institutional design
could address why these differences emerge.
51 We adopt and adapt some of the material in this section from Selecting Selection Systems, supra
note 4 7.
52 S oELDN
& MAULE. supra note 19; Smith, supra note 26.
The British belief in the value of an independent judiciary was transplanted to America, and
royal abuse of this principle was one of the grievances that gave a moral tinge to the Revolutionary
cause. The Declaration of Independence accused George III of having "made Judges dependent on
his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." Tam
DECLARATION OF INDEPENDENCE para. 11 (U.S. 1776).
5
3And not because "direct election of judges was unknown." John V. Orth. Tuesday, February 11,
1968: The Day North CarolinaChose Direct Election of Judges: A Transcriptof the Debatesfrom the 1868
Constitutional Convention. 70 N.C. L. Ray. 1825, 1826 (1992). Indeed quite early on, Vermont
(1777). Georgia (1812), and Indiana (1816) provided for the election of some lower court judges.
Most states probably eschewed elections out of a belief that "the electorate was not capable of evalua-
ting the professional qualities of judicial candidates," Grimes. supra note 26, at 2272.
As an aside, here and throughout this section, we place emphasis on the selection and reten-
tion of judges serving on state courts of last resort (usually called state supreme courts). We high-
light these courts because our account of judicial selection is aimed directly at (constitutional)
courts of last resort, here and abroad.
"Which figure is used depends on who is doing the chronicling. Elliott, supra note 33, and
VOLCANSEK & LAFON, supra note 19, use the seven, while Grimes, supra note 26, and SHELDON &
MAULE, supra note 19, use the eight. That scholars disagree on even basic facts about judicial selec-
tion systems only confirms a problem that plagues much of this research: analysts tend to rely
on a few (flawed) secondary sources-especially THE BOOK OF TRE STATES (Council of State
Governments, 1935-) (an annual publication)-and thus transmit errors from one piece of
research to the next. In this paragraph, we rely on those "flawed" data since they have become a
part of the standard story; in those that follow, we present analyses based on "corrected" data.
55
See Elliott. supra note 33; Grimes, supra note 26: SHELDON & MAULE. supra note 19: Vo-cANsEK &
LAFON. supra note 19.
56
See Croley. supra note 20.
57
See BRYCE, supra note 33; Escovnrz Or AL., supra note 33.
5
8 See HAYNrs, supra note 26: VOLCANSK & LAFON. supra note 19.
5
9Roll, supra note 26, at 841.
60
Grimes. supra note 26. at 2273.
61 Merit plans differ from state to state but usually they call for a screening committee, which may
be composed of the state's chief justice, attorneys elected by the state's bar association, and lay
people appointed by the governor, to nominate several candidates for each judicial vacancy. The
governor makes the final selection but is typically bound to choose from among the committee's
candidates. At the first election after a year or two of service, the name of each new judge is put
on the ballot with the question whether he or she should be retained in office. If the voters reject
an incumbent, he or she is replaced by another "merit" candidate. If elected, the judge then serves
a set term, at the end of which he or she is eligible for reelection.
High I-
0.9-
0.8-
0.7-
I 0.6-
'2 0.5- .. . . . . . .. .
0.4-
0
0.3-
0.2-
+1 Standard Deviation
0.1. Mean
Low 0. -1Standard Deviation
CD ID CO D D D D CD D CD CD D D D CD CD CD CD CD CD CD CD CD
62 See, e.g., Carrington, supra note 26; Grimes, supra note 26; HAYNEs, supra note 26; Roll, supra
note 26: SHELDON & MAUL, supra note 19; VOLCANSEK & LAFON, supra note 19; WATSON & DOWNING,
supra note 21.
63
See, e.g., ROBERT A. CARP & RONALD STEDHAM, JMDCIAL PROCESS
IN AMERiCA (CQ Press 5th ed. 1998);
HARRY P STuMPF. AmmucN JUDIcIAL Pou'ncs (Prentice Hall 2nd ed. 1998); G. ALAN TARR, JUDICIAL
PRocEss AND JUDICIAL POLICY MAKING (Wadsworth 3rd ed. 2003).
64
Smith v. Higinbothom, 48 A.2d 754, 187 Md. 115 (1946).
65
See note 34 for but one example.
6
The literature would justify this claim by pointing to lower levels of competition (or no competi-
tion at all) in these sorts of elections. Which, in turn, results in less threat to incumbent justices
and, thus, lowers judicial accountability. We offer a somewhat different justification in note 68.
67
To create the opportunity-cost measure depicted in figure 2. we first arrayed all retention mechan-
isms used in the American states between 1776 and 2000 on the following scale:
Low High
Opport-nity Oppotnity
Costs Costs
II I I I I I
Life Commision Govero Hit Govlernor Governor, RenioNnPanaPsn
C .nG _ 2 H...ses Re=' ton NonI-Purtim Partisan
Tenni reppoints ad reappoimt and Legislator., dron dereon eleckion
Conoinsion Legisnate and
rmppoin reippoint Conaiaion
reappoint
Underlying this scale is a straightforward assumption: the more players involved in reappoint-
ment, the higher the opportunity costs. See generally Charles H. Sheldon & Nicholas P.Lovrich,
StateJudicialRecruitment, in THE AMericAN CouRTs: A CRITIcAL ASSESSMENT (John B. Gates & Charles
A.Johnson eds., CQ Press 1991). For justifications for some of the specific placements, see Selecting
Selection Systems, supra note 47.
To animate this retention dimension, we collected data on the institutions used in the states to
retain justices serving on courts of last resort since 1776 and coded them from 1 (life tenure)
2.2 Empirical sketch No. 2: The former republics of the Soviet Union
The states of the former Soviet Union all designed new constitutional systems
in the 1990s. As part of these constitutional schemes, each established
institutional procedures for a constitutional court, including mechanisms for
through 9 (partisan elections) (see the above scale). We standardized the codes on a 0 to I scale,
such that scores closer to 0 represent low opportunity-cost retention systems (e.g.. life tenure) and
those moving toward 1, high-cost systems (e.g., partisan elections). Finally, we generated the
yearly mean of the retention scores across states. See Selecting Selection Systems, supra note 47.
Second, believing that any measure of opportunity costs ought also take into account the
length of the terms of office (with the primary assumption being that as the length increases,
opportunity costs decrease), we collected data on institutions governing judicial tenure in the
states since 1776. We standardized judicial terms (which have ranged in the U.S. from life tenure
to reappointment every year) to fall along a 0 to 1 scale such that scores closer to 0 represent life
tenure or very long terms and those closer to 1. very short terms. Id.
Finally, given that the means of the retention and term-length scales seem to move together
(see the figure below) we added the two scores to arrive at a final measure of opportunity costs-
the one depicted in figure 2.
0.9-
0.8-
0.7A
optportunity
costs
0.6- Story)
(Standard
0.3-
0.2
0.1
Low Opportunty Costs
0-.
w to wo o wo w to wo to to to to co to to to to to to to
to to0 to Si to toQ rt-2'GS ttV tou,
to: Ct C:V - V V - -oootaa Ct 05 05 0
HighOpportunity
Costa
0.9-
0.8-
0.7?Ptwo
0.6-
Ter Lengt
0.5-
0.4-
0.3-
0.2-
Costs
LowOpportunty 0.1
Go GO 0 ND 05 NO 3N r 8
judicial selection and retention. We presented the basic details of these mech-
anisms in table 1. In this section, we offer a preliminary and tentative sketch of
how our theoretical approach to the question of institutional preferences
might help to explain the variation in institutional detail that we observe in
6
8 The gray line is a depiction of opportunity costs based on the standard story (see figure 1 and
the accompanying text). The black line represents our measure of opportunity costs based on data
we collected from numerous primary and secondary sources. For more details, see Selecting
Selection Systems, supra note 47.
- 1
HighOpp lt Cos ts ,r .,, *''.,,,,vv
.1 StandardDeviation
0.8-
It
0.6 .auu.u.
'. inuuJi ufhs Ja,,,ha""
hlhhas ....... ,u,.u.........
..............
-0.2-...
Figure 3 Our opportunity-cost measure: the means and standard deviations over time,
1776-2000.
nine of the fifteen systems-the nine that Freedom House classified, in 2001,
69
as electoral democracies.
As was the case for our analysis of the American states, our first task is to
rank the various systems in terms of the relative judicial independence that
their selection and retention mechanisms may induce. For the states, we con-
sidered both the number of actors involved in judicial retention and the length
of the justices' terms of office; for our examination of the former republics
we focus primarily on the term-length dimension.7 1 (The particulars of the
retention process are less relevant for the nine former republics since the
possibility of reappointment has been incorporated into only one.) We con-
tinue, of course, to equate longer terms with lower opportunity costs and,
thus, with greater judicial independence.
69See Freedom House, Freedom in the World: Table of Electoral Democracies, available at
http://www.freedomhouse.org/research/freeworld/2OOO/table7.htm. By omitting societies that.
in 2001. did not fall under Freedom House's definition of a democracy, we recognize that we open
ourselves up to criticism: namely, that we are not tapping a concept of primary concern: the beliefs
of institutional designers at the time they drafted the key provisions of their constitutional docu-
ments. This would be a valid critique under some circumstances but not necessarily here. The rea-
son is simple: though in their constitutions the designers (in the excluded countries) may have
established democracies, their societies never functioned as such.
70
We acknowledge that an exclusive focus on term lengths limits our ability to assess fully judicial
independence in these societies. Nonetheless (and for the reasons we noted earlier), term lengths are
certainly not trivial elements in the institutional design of courts-at least not to their creators.
Accordingly, they provide a reasonable focal point for what is, by our own admission, a "sketch," albeit
a good starting point for what we hope will be a more comprehensive study in the years to come.
Russia Lithuania
Ukraine
Figure 4 Opportunity costs and term-length in nine of the former Republics of the Soviet Union.
71 For our purposes in this article, an ordinal measure is sufficient to demonstrate the differences
among the various selection/retention systems and to show how these differences might be
explained by our approach to institutional preferences.
72 A brief explanation is in order concerning our treatment of Russia. The original post-Soviet con-
stitutional system provided for life tenure for justices on the Russian Constitutional Court. After
the substantial political conflict that occurred in the middle of the decade the constitutional sys-
tem was redesigned to bring about several significant changes, including a shift to a twelve-year
nonrenewable term. See Lee Epstein et al., The Role of ConstitutionalCourts in the Establishmentand
Maintenanceof DemocraticSystems of Government, 3 5 L. & Soc'Y REv. 117 (2001). Since our analy-
sis here is a comparative one, we thought it best to compare the initial constitutional choices in the
fifteen systems.
73
We recognize that for a variety of reasons (e.g., some societies disenfranchise ethnic minorities,
thereby effectively preventing them from creating electoral political uncertainty) this is an imper-
fect measure. Yet, because it has been used in other studies and has some intrinsic merit, we think
it satisfactory-especially given the preliminary nature of this analysis.
Armenia 93.3
Russia 82.9
Lithuania 81.5
Ukraine 73.0
Georgia 70.0
Estonia 65.0
Kyrgyzstan 64.9
Moldova 64.5
Latvia 57.6
countries on the homogeneity scale. Only Estonia among the countries in group 1
fails to rank at or near the top of the homogeneity measure.
As we move farther down the rankings on judicial independence, the results
are less straightforward, while the implications for the theory of institutional
preferences are more ambiguous. So, for example, from among the four coun-
tries in group 3, the middle group in terms of the relative measure of judicial
independence-only two, Ukraine and Georgia-rank comparably in the
middle in terms of homogeneity. The other two, Lithuania and Latvia, rank
quite differently, with Lithuania in the upper third and Latvia at the bottom of
the homogeneity scale.
Our overall sense of the comparison is that while there is evidence of an
association (albeit a relatively weak one) between ethnic homogeneity and
judicial independence, there is still much work to be done before we can offer
our account of institutional preferences with great confidence. But a brief look
at one of the deviant cases, Estonia, suggests that (1) ethnicity may not be the
best measure of social homogeneity and political uncertainty for some of these
cases, and (2) other measures of political uncertainty may provide better sup-
port for the theory. Estonia ranks sixth on the measure of relative homogen-
eity, suggesting that less political uncertainty exists there than in the other
countries in group 1. It also suggests that, on the dimension of political uncer-
tainty, Estonia is more akin to the countries in group 3, which institutionalized
less judicial independence than had Estonia. It may be the case, however,
that ethnic homogeneity is not the best measure of political uncertainty for
Estonia, that in fact, indeed the measure underestimates the level of political
uncertainty in the country. Support for this view can be found in the volatility
74
of the Estonia electorate in the three parliamentary elections in the 1990s.
74
We obtained data on parliamentary elections in Estonia from http://www.parties-and-
elections.de/estonia.htnl and http://www.electionworld.org/.
3. Discussion
As we emphasized at the outset, the sketches we have just presented are simply
that-sketches designed to provide preliminary, very preliminary, assessments
of our theoretical account. To the extent that they are consistent with the basic
idea encapsulated in our account-that institutional preferences about judi-
cial independence are a function of the political uncertainty faced by the
designers of constitutional systems-we are encouraged. At the same time, we
recognize that much work must be done before we can make strong claims
about the fit between our data and our theory; in particular, the limited analy-
ses we have thus far conducted suggest that our future research ought to con-
centrate on developing persuasive measures of political uncertainty that we
can use as comparative referents across constitutional cases.
This noted, we do believe that this essay has made some contribution to
scholarly thinking about constitutional borrowing. While our empirical work
is quite underdeveloped, our theoretical work is less so. Indeed, we hope that
first, by conceptualizing borrowing as a case of institutional design and
second, by offering an account to explain design choices, we have worked to
eliminate some of the weaknesses in previous studies, while, at the same time,
have moved forward this fascinating line of inquiry.