Judicial Tenure and Retirements

Judicial tenure is often perceived as the most important institutional protection for judicial independence because it can promote the impartiality of court rulings. This chapter analyses different tenure models and their ability to protect judges effectively. Although life tenure is considered the gold standard to protect judges, and therefore embraced by a large number of constitutions worldwide, this arrangement is not free from problems. The first part of the chapter analyses the advantages and disadvantages of the life tenure system along with its two most frequent alternatives: judicial appointments with a mandatory retirement age, and appointments for a fixed term. The most common problems identified with life tenure are the ageing of judges on the bench, strategic retirements, and the potential disconnection of judges from society. Long, fixed terms without reappointment appear to be a better arrangement for promoting judicial independence. However, because formal tenure protections are not respected in many parts of the world, in the second part of the chapter we analyse how political actors disrupt judicial tenure. The authors create a novel typology that identifies four types of judicial exits: natural exits, strategic retirements, formal removals, and induced departures. The chapter offers illustrations for these patterns around the world, paying special attention to formal removals and induced departures. These examples underscore that chief executives are the most common actors threatening judges—but not the only ones—and that politicians employ formal removal procedures, as well as informal pressures, to purge the courts.

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Oxford Handbook PerezLiñan Castagnola