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

The power to select judges is key to judicial independence and democratic political control over the judiciary. We theorize governments’ choices of candidates as a function of political-strategic assessments of the will and ability of candidates to move policy in the desired direction. Our empirical case is the Court of Justice of the European Union (CJEU), where candidates are nominated by the EU member states for renewable six-year terms. Specifically, we study the effects of shifts in governments in member states, and of the incumbent judges performance on the bench, on the choice of 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 findings indicate that the selection of judges is strongly politicized along party lines. However, we also find that judges may increase their chances of having their terms renewed by performing well and gaining the trust of their fellow judges in the Court.