Presidential Power and Judicialization of Politics as Determinants of Institutional Change in the Judiciary: The Supreme Court of Ecuador, 1979-2009 (original) (raw)
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Politics & Policy, 2012
What explains institutional instability in national judicial institutions? Much extant research focuses on de facto institutional instability, emphasizing political motivations behind irregular changes to high court composition. In contrast, I consider the causes for de jure changes made to the Ecuadorian Supreme Court from 1979 to the present, drawing on qualitative and quantitative analyses. I contend that the judicialization of politics and presidential interest in stacking the courts are central explanatory factors, and that changes to the Supreme Court's institutional framework reflect implicit compromises and political arrangements negotiated by strategic political actors. As such, institutional reforms to national judicial institutions may be adopted to ameliorate conflict in the larger political sphere.
The Social Science Journal, 2012
In 2005 ongoing political conflict between the executive and legislative branches of government in Ecuador culminated in a struggle over the judiciary. These events resulted in the dismissal, re-constitution, and dismissal again of the Ecuadorian high court (the Corte Suprema de Justicia) and the impeachment of the president. This paper uses the political crisis surrounding the dismissal of the Ecuadorian Supreme Court of Justice to examine the broader phenomenon of executive branch attacks on the judiciary in South American and Africa. We make three general observations: (1) the longevity of the judiciary alone (time without attack) does not guarantee a sufficiently deep reservoir of diffuse support to protect it from successful efforts at structural change or dissolution, (2) despite previous evidence that multilateral constitutional processes result in increased court independence (Dargent, 2009), we conclude that multi-party institutional arrangements are more vulnerable to the types of crisis that cause them to seek to use courts and their legitimacy to achieve political goals thereby limiting previous gains in independence, and (3) a court's institutional legitimacy is enhanced when it survives political threats from other branches of government. The crisis in Ecuador is used to demonstrate the challenges facing newer democracies with continuing multilateral conflict as well as the utility of thinking about how, why and when political institutions attack high courts and how the judiciary and citizens respond. (J.E. Horan), meinholds@uncw.edu (S.S. Meinhold). 1 Tel.: +1 910 962 3223; fax: +1 910 962 3286.
Journal of Latin American Studies, 2012
This article develops and utilises an ideal point index of judges to explain why they may cast conviction-based votes in contexts of institutional instability. In it, I modify the classic argument that an increase in institutional instability causes a commensurate increase in the likelihood of strategic voting. By instead proposing a curvilinear relationship between these two variables, the article proposes that, irrespective of the term length of the judges, an increase in institutional instability increases the probability of strategic voting only to a given point, after which, paradoxically, a greater degree of job uncertainty tends to favour conviction voting. This scenario provides incentives for the emergence of ‘judges without robes’: attorneys who accept appointments as judges for a limited time, and who use the judicial arena to improve their personal prestige and portfolio of clients who will return to them for future consultation.
The Legacies of Judicial Instability in Latin America
Students of institutions have identified a pattern of ―serial replacement,‖ distinctive of Latin American countries in which institutional change has become frequent as well as radical. Patterns of serial replacement underlie wellknown ―traps‖ of deinstitutionalization: military coups beget more coups, democratic breakdowns make breakdowns more likely, constitutional replacements encourage the adoption of new constitutions, inter-branch conflicts feed further conflicts, and so on. In this paper we develop a theory of serial replacement and apply it to explain cycles of judicial instability in 18 Latin American countries. Using a novel dataset covering more than 3,000 Supreme Court and Constitutional Tribunal justices between 1900 and 2010, we show that political attempts to reshuffle Supreme Courts and Constitutional Tribunals encourage new attempts to reshuffle the high courts in later years, creating a sequential pattern of judicial instability.
This article develops and utilises an ideal point index of judges to explain why they may cast conviction-based votes in contexts of institutional instability. In it, I modify the classic argument that an increase in institutional instability causes a commensurate increase in the likelihood of strategic voting. By instead proposing a curvilinear relationship between these two variables, the article proposes that, irrespective of the term length of the judges, an increase in institutional instability increases the probability of strategic voting only to a given point, after which, paradoxically, a greater degree of job uncertainty tends to favour conviction voting. This scenario provides incentives for the emergence of ‘judges without robes’: attorneys who accept appointments as judges for a limited time, and who use the judicial arena to improve their personal prestige and portfolio of clients who will return to them for future consultation.
Judicial Instability and Endogenous Constitutional Change: Lessons from Latin America
British Journal of Political Science, 2014
Legal scholars frequently advocate institutional reforms to modernize the judiciary and promote judicial independence. However, constitutional reforms also offer an opportunity for politicians to reshuffle the high courts. The negative consequences of constitutional change for judicial stability are explored using an original database of Supreme Court and Constitutional Tribunal members in eighteen Latin American countries between 1904 and 2010. Because unobserved factors potentially explain constitutional replacement as well as judicial turnover, a two-stage event-history model has been employed. The analysis integrates two literatures, studies of constitution-making and studies of judicial politics. The results show that constitutional change is a significant cause of judicial instability and court manipulation, even after potential endogeneity has been taken into account.
Courts and Political Parties: The Politics of Constitutional Review in Ecuador
2010
* The categories for this variable correspond to strong partisan powers (unified government with the capacity to impeach) and strong opposition (with the capacity to impeach). Deadlock (no one can do much) is not included. ** When the current court was appointed in 1995 the PRI still enjoyed supermajoritarian control of the senate and could control the appointment process (Magaloni and Sánchez 2001) *** Following the literature, I am assuming an opposition without the necessary majority to proceed to impeachment. **** I assume a short term as five years or less; a long term is five year or more. When a term is long, a judge is independent early in the term. However, assuming static ambitions, he will be dependent late in the term as the time for reappointment approaches.
Presidential Control of High Courts in Latin America: A Long-term View (1904-2006)
Journal of Politics in Latin America, 2009
n many Latin American countries the executive branch manipu- lates the composition of the Supreme Court, and judicial independence has remained elusive. Because high courts can exercise judicial review and influ- ence lower courts, incoming presidents often force the resignation of adver- sarial justices or “pack” the courts with friends. One indicator of this prob- lem has been the high turnover among members of the high courts. In this paper we offer systematic evidence to compare this problem across coun- tries and to place this issue in historical perspective. Our analysis covers 11 Latin American countries (Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, and Uruguay) between 1904 and 2006. We model the entrance of new justices to the Supreme Court as a function of “natural” (legal and biological) factors, political condi- tions empowering the president to reshuffle the Court, and institutional incentives promoting executive encroachment on the judiciary.
This article identifies the variables that explain the dissenting legal vote in courts that operate under conditions of extreme institutional instability. Drawing on three logistic regression models, this article proposes that judges’ ideological preferences constitute a good predictor of the dissenting vote. Contrary to the classic argument, which indicates that the instability of judges encourages strategic voting, this article argues that this relationship can be demonstrated only up to a certain point – that is, until an exponential increase in institutional instability leads the judges to vote sincerely, even when this means being part of a minority or “losing” coalition.