Will Do? Selecting Judges on the Basis of Policy Preferences or Performance Indicators.

Are governments’ appointments of judges to the Court of Justice of the European Union (CJEU) politicized? And does this prevent them for emphasizing competence? The power to select judges is key to representative institutions’ control over the judiciary. Nevertheless, while the CJEU is the most powerful of international courts and motor of the judicialization of politics in Europe, the selection criteria that governments follow have remained a blank in the literature. We theorize governments’ choices as a function of an evaluation of the will and ability of candidates to move policy in the desired direction. In particular, we study the effect of shifts in governments and judicial candidates’ previous performance on the retention of incumbent judges. We rely on original data on all appointment decisions to the CJEU over a 60-year period, biographical information and key performance measures of judges’ activities at the Court. Our results speak to the degree of politicization in the selection of judges, but also to the interdependence between member states and the Court’s leadership, as de-facto dual principals in relation to the judges.