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Judges' behaviour and relationship with political parties in a non-common-law country: The case of the German Federal Constitutional Court

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In contrast to common-law countries, in civil-law countries it is difficult to investigate individual judges as political actors. It is mainly due to the legal norm under the civil-law tradition which is averse to disclosing individual judges' behavior. An exception is the German Federal Constitutional Court, permitting their judges to publish dissenting opinions. This paper identifies individual judges' political orientation on an underlying dimension by applying an unfolding-type of item-response model to those dissenting opinions. We find different degrees of congruence between political parties' and judges' political orientation, which we explain by the principal-agent theory. More specifically, we argue that some characteristics of potential judges are crucial for the screening by political parties in the selection process of the judges. Our empirical analysis shows that judges' party membership and former political career promise more screening success by parties, while lifetime appointment decreases congruence of nominating parties and judges.
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years
frequency of dissenting opinions
1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014
0 1 2 3 4 5 6 7 8 9 10
yij i j yij
Pr(yij = 1) = 1
1 + |xiaj|2b
xii ajj
xi=aj
xiajb
b= 10
b < 1
−10 −5 0 5 10
0.0 0.2 0.4 0.6 0.8 1.0
xi
Pr((yij == 1))
a=0; b=1a=−5; b=0.5 a=5; b=5
−1.5 −1.0 −0.5 0.0 0.5 1.0 1.5
Kutscher
Leibholz
Geller
V..Schlabrendorff
Rupp
Seuffert
Geiger
Hirsch
Rottmann
Wand
Rinck
Steinberger
Niebler
Zeidler
Träger
Mahrenholz
Böckenförde
Klein
Graßhof
Kruis
−1.5 −1.0 −0.5 0.0 0.5 1.0 1.5
Franßen
Kirchhof
Winter
Sommer
Limbach
Jentsch
Hassemer
Broß
Osterloh
Di.Fabio
Mellinghoff
Lübbe.Wolff
Gerhardt
Landau
Voßkuhle
Huber
Hermanns
Müller
Kessal.Wulf
−0.6 −0.4 −0.2 0.0 0.2 0.4 0.6
SPD/FDP (1970−1982)
CDU/CSU/FDP (1982−1998)
SPD/Grüne (1998−2005)
CDU/CSU/SPD (2005−2009)
CDU/CSU/FDP (2009−2013)
CDU/CSU/SPD (2013−2014)
mean decision
SPD approval
CDU approval
SPD rejection
CDU rejection
xi=β0+β1ZSP D
i+β2Zpm
i+β3ZP C
i+β4Zla
i+β5ZSP D
iZpm
i+β6ZSP D
iZP C
i+β7ZSP D
iZla
i+i
ZSP D Zpm ZP C
Zla
intercept
SPD nomination
party membership
political career
lifetime appointment
SPD nom x PM
SPD nom x PC
SPD nom x LA
−2.5 −2 −1.5 −1 −0.5 0 0.5 1 1.5 2 2.5
CDU nom: without party membership
SPD nom: without party membership
CDU nom: with party membership
SPD nom: with party membership
CDU nom: with party membership + political career
SPD nom: with party membership + political career
CDU nom: with party membership + lifetime appointment
SPD nom: with party membership + lifetime appointment
−1.5 −1 −0.5 0 0.5 1 1.5
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