How to avoid constitutional court-packing in an era of democratic backsliding: Reflections on the appointment of constitutional judges

Abstract

Any struggles in the nomination and appointment of constitutional justices and failed renewal of the composition of the constitutional court might corrupt the perception of the independence of the guardian of constitutionality. The recent wave of impropriate renewals of constitutional courts throughout Europe leads to substantial concern. There are numerous more or less serious examples, including the well-known cases of Poland and Hungary, but alongside with them Latvia, Lithuania, the Slovak Republic, etc. In an era of democratic back-sliding more significant in some countries and less in others, it leads to wondering whether the influence of politics in power could be the critical factor distorting the composition of constitutional courts and whether this can be seen as a new virus infecting new democracies. After analyzing the recent failures to appoint constitutional justices, caused essentially by malfunction due to political actors participating in the process, the paper argues that in the selection, nomination, and appointment of constitutional justices, ensuring the depoliticization of this procedure is not the best choice, because the participation of democratically elected institutions in the formation of the constitutional courts enhances their legitimacy and credibility. The former, entrusted with the power to adopt erga omnes decisions, desperately need this legitimation. Different political cultures and contrasts in states' constitutional orders suggest that there is hardly one recipe that fits all. However, some universal and fundamental criteria stemming from the principle of the rule of law intended to ensure the independence of constitutional justice could bind the discretion of political actors participating in the nomination and appointment of constitutional judges and contribute to preventing constitutional crises.