Judicial councils are organs formed either inside or outside the judiciary that manage all administrative tasks of the courts. In other words, councils take over all personnel, management, maintenance, and planning tasks of the institution, leaving judges to focus on the task of judging without being distracted by managing the daily operation of courts. Indeed, Ingram (2012, 2016) documents that some judges in Mexico reported they were mostly occupied with the administrative responsibilities associated with managing a court, so placing these administrative duties in the hands of councils promises to free up judges for the task of judging. Notably, councils can also be empowered to take charge of judicial appointments—including the examination, ranking, hiring, promotion, and even firing of first-instance and other lower level judges—and these appointment powers can extend even to the nomination of judges on state and national high courts, though the political branches generally make final decisions on these nominations.
For these reasons, judicial councils have the potential to generate multiple salutary benefits for courts. If designed and operated well, councils can yield gains in terms of accessibility, efficiency, and accountability. If the appointment powers are working well and are paired with a strong examination process—also overseen by a council—then political influence over judicial positions can be minimized and merit can be maximized, yielding more independent and competent courts and contributing further to accessibility and efficiency, as well as to the quality of judicial decision making. Taken together, independence, accountability, and competence can also be expected to reduce corruption. In short, the appeal and relevance of judicial councils lie in their promise of increased court performance across multiple fronts: access, efficiency, accountability, independence, competence, and control of corruption.
Despite the multiple benefits they may produce, judicial councils have received very little attention in the literature on comparative legal institutions. One goal of this volume is to move beyond high courts to examine understudied justice institutions, so this chapter takes a few steps toward redressing the lacuna in research on judicial councils. The chapter first summarizes existing work on judicial councils and then clarifies the concept of council strength. Conceptually, I follow others (e.g., Hammergren 2002; Finkel 2008; Garoupa and Ginsburg 2008, 2009; Ingram 2012, 2016) in disaggregating judicial council strength into three component dimensions: composition, selection, and powers. A strong council is one with (1) a diverse and competent composition, (2) independence that comes from the selection mechanisms for councilors, and (3) broad powers. Implicitly, I expect strong councils to be more effective institutions. Thus, I turn to the concept of judicial performance—including the dimensions of access, efficiency, and independence—and examine how exactly strong judicial councils contribute to improving court performance.
Most of the literature on councils has emphasized how their composition influences their ability to maximize either judicial independence or accountability with respect to external political forces. Closer attention to how and why council members are selected sheds additional light on the independence of the body. These council selection mechanisms, if combined with council powers over the selection, oversight, and even discipline of judges, provide leverage to examine the internal independence of courts—the autonomy of judges or the subordination of judges and other court staff (including court clerks and secretaries) to hierarchies and power relations internal to the judiciary as an institution; that is, council selection mechanisms may be situated anywhere on a continuum between highly democratic and inclusive or highly centralized and exclusive. In some cases, councils may be virtually handpicked by the court leadership, which renders them essentially an extension of that leadership; if those councils then have powers to select lower level judges, then structures of loyalty and dependence within the judiciary can undermine internal independence. Separately, councils can be dominated by members handpicked by the political branches; if those councils then have wide powers over judicial careers, this arrangement undermines external independence. In short, studying the selection of councilors provides valuable insights into the dynamics of judicial independence, including both internal and external independence.
The high court in Brazil (STF, by its Portuguese initials), for instance, recently defended the National Council of Justice in Brazil (Conselho Nacional de Justiça, CNJ) from criticism that the CNJ’s administrative oversight of courts is an infringement on the autonomy of judges. In 2012, in a controversial six-to-five vote, the STF ruled (ADI 4638) that the CNJ had strong investigative and disciplinary powers, in order to ensure that the judiciary operated as a single, uniform entity—from first-instance judges in rural parts of the states to the highest levels of the federal judiciary in the nation’s capital. Thus, the high court reinforced the power of the council—a national body internal to the judiciary—to operate as a mechanism of vertical oversight for all judges. In a different example from Mexico, Pózas-Loyo and Ríos-Figueroa (2011) emphasize how, following the 1994 reform that created the first national judicial council, a 1999 counter-reform to the selection mechanisms of Mexico’s federal council brought that institution under the control of the high court, creating a council composition that was friendly toward that high court’s interests, rather than pursuing its own institutional agenda. Thus, the federal council in Mexico—a national body with powers over the careers of all federal judges, including their entry into the career in the first place—is closely tied to the high court, reducing internal independence. To be sure, independence and accountability are in tension with each other in these examples. I return to this tension later (see also Shapiro, chapter 10 in this volume).
excerpted from chapter 7
