Presidential Power and Judicial Stability in Latin America, 1900-2006

Anbal Prez-Lin (asp27@pitt.edu) Andrea Castagnola (mac85@pitt.edu)

Department of Political Science University of Pittsburgh

In many Latin American countries the executive branch manipulates the judiciary. One indicator of this problem has been the high historical turnover among members of the Supreme Courts and Constitutional Tribunals. This paper analyzes judicial turnover in thirteen Latin American countries (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Uruguay) between 1900 and 2006, adding the United States as a comparative point of reference. We employ discrete-time survival models to estimate the probability that changes in the composition of high courts resulted from changes in the executive branch after controlling for several other factors. The statistical results indicate the presence of two distinct Latin American patterns: while realignments in the executive branch have produced recurrent reshuffles of high courts in Argentina, Bolivia, El Salvador, Guatemala, Honduras, Mexico, and Paraguay, the courts in Brazil, Chile, Colombia, Costa Rica, Panama, and Uruguay have displayed patterns of judicial turnover similar to the United States.

Prepared for delivery at the 2009 Congress of the Latin American Studies Association, Rio de Janeiro, Brazil June 11-14, 2009. This project was funded by the Center for Latin American Studies, the University Center for International Studies, and the Central Development Research Fund at the University of Pittsburgh. Sebastin Linares, Kurt Weyland, Bruce Wilson, and Laurence Whitehead offered valuable comments. We are indebted to Erin Rodriguez and Alicia Math for their research assistance. Ronald Alfaro Redondo, Guadalupe Amusquvar Pearanda, Andre Burton, Elizabeth Buncher, Csar Cabello, Gabriela Contreras, Carlos Guevara Mann, Lenina Meza, Alfredo Narvaez, Gabriel Negretto, Sebastin Ocampo Valencia, Patricia Salvador Berro, Kenzie Swift, Jorge Vargas Cullell, Evelyn Villareal, and Laura Wills Otero helped us identify sources and collect data for this project.

Where in Latin America have judges developed a more independent relation with the executive branch? How can we measure the presidents ability to manipulate the composition of the Supreme Court or the Constitutional Tribunal? In this paper we address those questions comparatively. Our analysis covers thirteen Latin American countries (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, and Uruguay) between 1900 (1904 in the case of Panama) and 2006. We also include the case of the United States Supreme Court as a comparative point of reference. In the next two sections we review the main contributions of the literature dealing with judicial behavior in the United States and Latin America, and present our theoretical argument. The work on American judicial politics provides interesting frameworks to understand judicial turnover, but it seems insufficient to understand the institutional context in Latin America. Research on Latin America, by contrast, has offered important arguments about judicial instability in the region, but some of the assumptions held in those studies remain untested. In the third section we present descriptive data about judicial tenure throughout the region and develop a statistical model of judicial turnover in Latin America and the United States. In Colombia, El Salvador, and Bolivia the average tenure for Supreme Court justices has been less than 4 years, whereas in Brazil it has been almost 11 years and in the United States, almost 17. What factors account for this variance? We employ a survival model to identify the political factors that can account for justices stability in office. Our conclusions emphasize Verners (1984) claim that executives are key to explain judicial stability in the region. Justices are more likely to leave office when they are not politically aligned with the president and when a new administration comes into office. The

findings reveal that courts have been manipulated by the executive branch, but also that there are considerable differences among the countries in the region.

Judicial Turnover and Strategic Behavior Judicial turnover constitutes the missing link in much of the recent research on judicial behavior in Latin America. One of the most prominent approaches to the study of judicial behavior in Latin America has been the analysis of strategic decision-making from a separationof-powers perspective (Magaloni and Sanchez 2006; Helmke 2005; Scribner 2004; Iaryczower et al. 2002; Rios-Figueroa 2007; Leoni and Ramos 2006; Chavez 2004; Prez-Lin et al. 2006). 1 This line of research has often assumed that the tenure of Latin American Supreme Court Justices is not respected. Arguments about strategic ruling usually claim that justices respect the preferences of the executive branch when presidents are powerful and challenge the executives interpretation of the law when presidents are weak. Voting against the preferences of a powerful president can make justices vulnerable because the president and the ruling party in Congress may initiate an impeachment process and remove the hostile judges from the Court. In addition, presidents may mobilize partisan majorities in Congress to pack the Court with friendly justicesparticularly early during their terms. Because of those reasons, the literature assumes that Supreme Court justices will be less likely to defy presidents who control large congressional majorities, unless the end of the administration is in sight. Even though the existing literature for the most part does not explicitly analyze the ways in which justices leave office, those assumptions about presidential leverage serve to explain the rulings of Supreme Court members. The main limitation of these works is that those assumptions are generally not tested.2 Whether political realignments in the executive branch

actually trigger judicial turnover remains an empirical question. And the answer to that question may change across countries and in different historical periods. Surprisingly, the literature on the U.S. Supreme Court may shed some light on this issue. American scholars have analyzed the factors that explain changes in the composition of the U.S. Supreme Court. In the American case, the president will nominate a new justice when someone steps off the bench voluntarily; thus the main research objective of American scholars has been to determine the factors predicting when a vacancy will occur.3 The U.S. literature on judicial vacancies involves qualitative studies that are mainly chronological and biographic accounts of the justices that served in the Court (Atkinson 1999; Ward 2003) and quantitative analyses of the factors that affect the departure of justices. The second type of analysis provides a theoretical framework to think systematically about the causes of judicial instability, as those studies have identified political and non-political factors that affect judicial tenure (Spriggs and Wahlbeck 1995; Hagle 1993; Squire 1988; Barrow and Zuk 1990; Nixon and Haskin 2000; King 1987; Hall 2001; Epstein and Segal 2005; Zorn and Van Winkle 2000).4 The analysis of non-political factors (often treated as control variables) suggests that justices retire from the bench for personal reasons: age, salary and retirement benefits, caseload, and job satisfaction. The other set of explanations is related to the political conditions that may encourage justices to step off. For instance, the literature has argued that a justice is more likely to retire when he or she identifies with the political party in control of the White House and the Senate, because in such cases the president will nominate (and the Senate will confirm) a candidate with the same political preferences (Zorn and Van Winkle 2000). Strategic justices will therefore time their retirements to transfer their seats to other like-minded colleagues (Zorn and Van Winkle 2000; Spriggs and Wahlbeck 1995). Along the same line of reasoning, the

literature has argued that justices will not retire during the last years of the presidential term if the president belongs to the opposite political party (a strategy of wait-and-see), but they will be more likely to retire early during the term, especially the second presidential term, since they may not want to wait too long (Spriggs and Wahlbeck 1995; Hagle 1993; Zorn and Van Winkle 2000). In sum, those theories reveal that judicial turnover may be explained by the interaction between the ideological preferences of the justices and the ideological preferences of the president (and his or her party in Congress). But the main assumption underlying those explanations is that justices will determine when a vacancy will occur. As Ward has pointed out, what is significant about departures [in the U.S. Supreme Court] is the power of the justices themselves to influence who their successor will be by the timing of that departure (2003, 6). Epstein and Segal noted that, by contrast, ideology and partisanship have not figured prominently in most judicial removals in the United States (2005, 32). Even thought the U.S. literature offers an interesting model of judicial turnover, this hypothesis is based on assumptions that hold perfectly for the American case, and maybe also for advanced industrial democracies, 5 but pose problems for developing countries like those in Latin America. The main problem with this assumption in nascent democracies is that it is the motivation of the president rather than of the justice what determines when a vacancy will occur. In other words, in nascent democracies the stability of a justice is affected by a presidential decision to remove a justice from office, whereas in the American literature the stability of the justice in office is solely affected by the justices own decision. Therefore, even though politics is the main explanation of judicial turnover for both the US and the Latin American case, politics operates differently on each case. Where in the US, retirements are a strategic political

calculation of the justices in office, in developing countries, retirements are a strategic political calculation of the executive in office.

Presidents and Court Reshuffles Presidents may want to appoint the members of the Supreme Court or Constitutional Tribunal for at least three reasons: (1) in order to control the process of judicial review (i.e., to minimize the risk posed by a potential veto player); (2) to exercise indirect leverage over lower courts (where relevant legal cases may be decided); and (3) because those jobs are a valuable reward for loyal followers in the legal profession. Therefore, we argue that presidents ideally prefer to deal with justices nominated by them rather than with justices nominated by previous administrations and, if this is not possible, at least with justices nominated in the past by their own party rather than with justices nominated by the opposition. Furthermore, presidents may prefer to craft a loyal Court earlier rather than later in their terms so that they can exercise leverage on the judiciary during the whole period in office. Vacancies in the high courts represent the best opportunity to shape the top echelons of the judiciary. Depending on the institutional setup, presidents may nominate candidates that are approved by the legislature (as in Argentina, Brazil, Mexico, Panama, and partly for the Colombian Constitutional Court), they may instruct their parties in Congress to appoint likeminded judges (as in Bolivia, Costa Rica, El Salvador, Guatemala, Honduras, and Uruguay), or they may appoint new justices from a list of candidates presented by the Supreme Court itself (as in Chile). In extreme cases (such as the aftermath of a military coup), presidents may even appoint Court members unilaterally. Only in rare instances (e.g., the Colombian Supreme Court

after 1991) is a high court able to recruit new justices without the explicit intervention of the executive branch or the presidents party in Congress.6 The executive can craft supportive courts not only by nominating friendly justices for open vacancies, as the American literature has long recognized, but more interestingly by influencing when a vacancy will occur. In order to create vacancies in the high courts, presidents may offer incentives for justices to retire or they may negotiate with Congress an expansion of the number of seats in the Court (i.e., they may pack the Court).7 Our comparative analysis thus relaxes the standard assumption in the American politics literature; we allow for the fact that justices not always step off the bench voluntarily, but rather as a result of a presidential manipulations and pressures. Because of this reason, we anticipate that judicial turnover will often result from political realignments in the executive branch. Changes of administrations in Latin America have been the product of free and fair elections as well as of military coups; they have brought changes in the ruling party as well as partisan continuismo. Such institutional differences affect the capacity of incoming presidents to restructure the courts. But we hypothesize that, to the extent that presidents are willing and able to nominate new justices, it is likely that they will do so early during their administrations, when their political leverage is stronger and the time horizons for the administration are longer. Although we cannot observe the political maneuvering leading to the opening of vacancies in the Supreme Courts and Constitutional Tribunals, we can infer the leverage exercised by presidential administrations by looking at the historical record. In the next section we present an analysis of the stability of high court justices in the region over the past century.

We present descriptive data that reveals high levels of judicial turnover in the region as well as statistical models that account for that situation.

Judicial Stability in the Americas, 1900-2006 Our dataset contains information about the justices tenures from thirteen Latin American countries (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, and Uruguay) plus the United States between 1900 and 2006. We observe justices in both Supreme Courts and Constitutional Tribunals and identify when justices entered and left office.8 Table 1 displays the average tenure for Latin American justices. The United States is included in the table for comparative purposes. The average tenure in column one reveals that judicial turnover in Latin American countries varies greatly; however, the length of the tenure should be interpreted in relation to the constitutional design. Argentina, Brazil, Chile, and United States are the only countries in the region that guaranteed life tenure during the whole period, while the rest of the countries had fixed terms or altered the tenure system at some point during the twentieth century (e.g., Colombia and Uruguay used to offer life tenure to Supreme Court members before moving to a fixed term system). As Table 1 illustrates, there has been great variation in the constitutional design of those countries with fixed terms, ranging from 2 years in El Salvador to 15 years in Mexico. When the tenure of a justice is short or it coincides with the term of the appointing authority, there is considerable potential for political manipulation (RiosFigueroa 2009). Since presidential and congressional terms in the region usually range between 4 and 6 years, judicial tenures should be longer than 6 years to prevent abuses. However, as Table 1 shows, many countries had terms ranging from 2 to 6 years.

Table 1 Argentina, Brazil, Chile, and United States formally guarantee life tenure for justices; nevertheless, the average tenure has varied greatly. In the U.S., justices have stayed in office for 16.8 years on average, while in Brazil they have stayed in office for 10.7 years, in Chile for 9.1 years, and in Argentina for 6.7 years. Evidently, the variation across countries reveals that there are other factors affecting the stability of the justices in office. Regarding the countries with fixed terms, Table 1 demonstrates that where the tenure was longer than 6 years, justices rarely finished their terms in office. For example, until 2009 Bolivia had a fixed 10-year term for both the Supreme Court and the Constitutional Tribunal; however, the average justice in both institutions stayed in office for less than four years. This suggests that most justices have not finished their termsagain, there are other reasons besides constitutional design that must account for judicial turnover. The justices from the Chilean Constitutional Tribunal faced a similar situation since the Constitution guaranteed an 8-year term but they stayed on average for 5.4 years. Uruguay is an interesting case, since in 1934 the country changed from life tenure system to a fixed system. During the life tenure system justices stayed in office 9 years on average, whereas during the 10-year system they stayed for less than 7 years on average. Costa Rica is the only exception to this pattern, since justices not only finished their 8-year terms but also they were automatically reappointed to the bench.9 Figure 1 Figure 1 shows the proportion of justices leaving the Supreme Courts in any given year, while Figure 2 displays the proportion of justices leaving the Constitutional Tribunals. We identify as reshuffles any years in which at least half of the justices in the Court or Tribunal simultaneously left the bench. The United States and Brazil are the only two countries that did

not have a single reshuffle between 1900 and 2006. The Chilean Supreme Court had only one. The Supreme Courts that underwent the largest number of reshuffles were the ones in Guatemala, Honduras, Bolivia, Paraguay, and El Salvador (between 20 and 27 reshuffles). Constitutional Tribunals have also experienced reshuffles. The Chilean Tribunal was created in 1971 and until 2006 it was reshuffled twice (closed in 1973 as a result of the military coup), whereas the Tribunal in Guatemala was created in 1987 and it was reshuffled 4 times. The Colombian Tribunal started to work in 1993 and until 2006 it was reshuffled once, and the Bolivian Tribunal started to work in 1999 and until 2006 there had been no reshuffles (the Tribunal was dismantled the following year, however). Some of those reshuffles have resulted from the completion of judicial terms (as a majority of justices completed their fixed terms in the same year) but the high frequency of reshuffles in some countries indicates a volatile pattern of judicial turnover. This suggests that incoming executives may have crafted Courts or Tribunals for political purposes. Figure 2 How can we explain this considerable variance in judicial turnover across countries as well as within countries over time? Following the literature, we use a discrete-time survival model to explore what factors account for judicial instability (Nixon and Haskin 2000; Squire 1988; Zorn and Van Winkle 2000). The units of analysis are justice-years. The dependent variable is a dichotomous indicator coded as 1 in the year when a justice left office and 0 otherwise. In Table 2 we present the statistical results for the analysis of the 14 countries from 1900 to 2006. The predictors seek to capture the political conditions that explain the frequency of judicial departures from the Supreme Court or Constitutional Tribunal. The first variable

captures whether the sitting justice is aligned with the president (i.e., whether he or she has been appointed under the incumbent president, during the current or any past term), whereas the second predictor measures whether the justice is aligned with the ruling party (i.e., whether the justice was appointed under a president of the same party). We expect that justices aligned with the president, and to a lesser extent with the ruling party, will be less likely to be removed from office, since they will be relevant to craft a supportive court. The following three predictors are dummy variables that measure whether, over the last two years, there was: (1) any change of administration; (2) a change of administration involving a change in the ruling party, or (3) the establishment of a military dictatorship. We expect to find a positive coefficient for those variables since incoming executives prefer to craft a supportive court earlier in their terms. The use of three separate indicators is intended to determine whether any pattern of executive change or particular forms of executive realignment are relevant for judicial turnover. Between 1900 and 2006 most Latin American countries experienced military governments and therefore we control for the presence of military dictatorships using a dummy variable. This indicator does not capture the recent establishment of military rule (as the dummy mentioned in the previous paragraph) but simply the presence of military rulers at any point during the dictatorship. An additional variable captures the total number of justices in the Court or Tribunal, an important measure to calibrate the risk confronted by justices. If presidents are able to expand the number of members in the high courts, they may pack the tribunals without removing justices from office. Because our sample pools justices in all high courts, we also include a dichotomous indicator capturing the situation of Constitutional Tribunal members (who presumably face a greater risk) vis--vis Supreme Court justices.

10

Following Carter and Signorino (2007) we included three variables to model duration dependence: time (measured as the number of years since the justice joined the court), time squared, and time to the cube. The reasons to model temporal dependence in this sample are not only econometric but also substantive: as justices spend more years in office, they may simply approach retirement age (Box-Steffensmeier and Jones 2003). Table 2 Model 2.1 shows a discrete-time survival model using a logit estimator with robust standard errors (Box-Steffensmeier and Jones 2003 Chapter 5). The results indicate that being aligned with the president reduces the probability of leaving the bench in any given year. The coefficient for party alignment is insignificant, which suggests that closeness to the executive more than to the ruling party is important to account for judicial stability in office. The dummy variables for the arrival of a new administration and a new ruling party are also positive and statistically significant. During the first two years of a new administration, justices are more likely to leave the benchand that risk grows when a new party comes to power. The establishment of military rule does not trigger additional turnover in the short run, but the indicator for military regimes shows that court seats are generally unstable during military dictatorships. The size of the court is negatively correlated with judicial turnover, revealing that an increase in the number of justices reduces the chances that any incumbent justice will leave the bench. Supreme Court members have not been safer than members of Constitutional Tribunals. We replicated the same results using a random-effects logit estimator (individuals are the substantive units in model 2.2) and a rare events logistic regression (model 2.3).10 The duration terms in all models are significant, indicating a non-linear evolution of the hazard rate over time.

11

Figure 3 (based on model 2.3) summarizes this pattern by plotting the expected log-odds of a judicial exit over the years. Although there is some increasing risk of an exit around year seven (which may be the product of institutional design in fixed-term systems), the hazard rate expands considerably after the second decade in office, showing the effects of age retirement. Figure 3 Since the models in Table 2 are non-linear, for substantive interpretation we computed the predicted probabilities (based on the results of model 2.3). Consider a justice in a supreme court of 10 members, after five years in office. If the justice is aligned with the civilian president and his party, and the administration has been for more than two years in office, the probability of the justice leaving office in any given year is about 8 percent. However, if the civilian administration changes and the same justice finds herself not aligned with the president and the new ruling party, the probability of leaving office increases to 22 percent. Yet, if a military junta displaces the civilian government, the risk increases to 42 percent.11 Those estimates assume that the risk under similar circumstances is uniform across countries. But is that a legitimate assumption? Model 2.4 addresses two comparative questions: (1) is judicial tenure generally shorter in some countries; and (2) are incoming presidents more likely to craft supportive courts in some countries? In order to address those questions, this model includes country fixed effects as well as 13 interaction terms between the country dummies and the new administration variable. The coefficients for the country dummies (not reported in Table 2 to save space) suggest that judicial tenure has been ceteris paribus shorter in all Latin American countries than in the United States. Table 3

12

Table 3 presents the conditional coefficients for the variable reflecting a change in administration, by country. Argentina, Bolivia, El Salvador, Guatemala, Honduras, Mexico and Paraguay have statistically significant coefficients, which reveal that government changes in those countries have consistently triggered court reshuffles. Honduras and Bolivia clearly present the highest historical instability. For all other countries (Brazil, Chile, Colombia, Costa Rica, Panama, the United States, and Uruguay) the effects are insignificant, indicating an important pattern of causal heterogeneity in the sample.

Discussion Even though, during the last decades there has been a growing interest in studying judicial politics in Latin America, our knowledge still remains quite limited. Region-wide assessments of judicial institutions are scarce, and comparative historical perspectives are often hindered by the lack of reliable sources. In this paper we used long-term comparative data of 13 Latin American countries for justices of the Supreme Courts and Constitutional Tribunals between 1900 and 2006. The data reveals that there is a significant difference in judicial turnover among countries in the region. Our findings reinforce and expand Verners (1984) early conclusions about the importance of the executive branch for explaining judicial stability. The risk that a justice will leave the bench increases during the first years of a new administration and when the justice is not aligned with the executive. This reveals that presidents do not trust justices appointed by their predecessors and therefore seek to craft a supportive Court during their first years in office. This result tends to corroborate the untested assumption in the literature on Latin American judicial politics (Magaloni and Sanchez 2006; Chavez 2004; Helmke 2005; Iaryczower et al.

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2002; Scribner 2004; Leoni and Ramos 2006; Prez-Lin et al. 2006). If this is the case, we can expect high levels of judicial turnover in the region in the years to come. Furthermore, our findings suggest that in contrast to the US case, in Latin America it is presidents, rather than the justices themselves, who often determine the timing of judicial retirements. However, we have documented important variation across countries. While Argentina, Bolivia, El Salvador, Guatemala, Honduras, Mexico and Paraguay had recurrent reshuffles of high courts due to executives realignments; Brazil, Chile, Colombia, Costa Rica, Panama, and Uruguay had a pattern of judicial turnover independent of changes in the executive branch (a pattern similar to the one observed in the United States). This contrast opens two important research questions. First, what factors account for such differences within the region? Can different trajectories in judicial development be explained by differences in institutional design, or should they be explained by the political motivation of the executives in those countries? Second, how can we explain that presidents in very different institutional settings have been able to manipulate the partisan composition of high courts in similar ways? Those questions call for future research with a comparative perspective and with a long-term historical design.

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Tables and Figures Table 1: Average tenure for the Latin American Supreme Courts justices, 1900-2006 Country Argentina Bolivia Bolivia Brazil Chile Chile Colombia Body S.C. S.C. C.T. S.T.F. S.C. C.T. S.C. Mean Tenure (1900-2006) 6.7 3.6 3.7 10.7 9.1 5.4 3.7 Tenure System Life Fixed (10-year) Fixed (10-year) Life Life Fixed (8-year) Mixed Mean for mixed tenure systems

Life (1900-1904): 1.5 5-year tenure (1905-1978): 3.13 8-year tenure (1979-2006): 4.8 4-year tenure (1900-1948): 6.95 8-year tenure (1949-2006): 13.47 4-year tenure (1945-1984): 4.1 6-year tenure(1985-2006): 5.3 5-year tenure (1985-2006): 4.47 4-year tenure (1900-1936): 5.3 6-year tenure (1937-1981): 6.1 4-year tenure (1982-2006): 3.8 6-year tenure (1900-1916): 7.5 15-year tenure (1987-2006): 7.4 10-year tenure (1946-2006): 5.8 4-year tenure (1900-1939): 2.7 5-year tenure (1940-2006): 6.1 2-year tenure (1900-1938): 2.7 3-year tenure (1939-1982): 2.9 5-year tenure (1983-2006): 6.03 Life tenure (1900-1933): 9 10-year tenure (1934-2006): 6.6

Colombia Costa Rica Guatemala Guatemala Honduras

C.T. S.C. S.C. C.T. S.C.

6.1 9.9 4.9 4.5 5.1

Fixed (8-year) Fixed mixed Fixed mixed Fixed mixed Fixed mixed

Mexico Panama Paraguay El Salvador

S.C. S.C. S.C. S.C.

7.8 5.4 4.4 3.4

Fixed mixed Fixed Fixed mixed Fixed mixed

Uruguay

S.C.

7.1

Mixed

United States S.C. 16.8 Life Key: S.C. Supreme Court; C.T. Constitutional Tribunal; S.T.F. Supreme Federal Tribunal

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Figure 1: Reshuffles in Supreme Courts, 1900-2006

ARG
1

BOL

BRA

CHL

Prop. of justices leaving the Court

.5

COL
1

CRI

GTM

HND

.5

MEX
1

PAN

PRY

SLV

.5

1900

1950

2000

1900

1950

2000

URY
1

USA

0
1900

.5

1950

2000

1900

1950

2000

Year
Graphs by iso alpha-3 code

Note: Total number of reshuffles on the Supreme Courts: Argentina 7, Bolivia 22, Chile 1, Colombia 10, Costa Rica 3, Guatemala 21, Honduras 22, Mexico 7, Panama 13, Paraguay 25, El Salvador 27, and Uruguay 3. Brazil and United States did not have a reshuffle in their Courts during this period.

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Figure 2: Reshuffles in Constitutional Tribunals, 1970-2006

BOL
1

CHL

Prop. of justices leaving the Tribunal

.5

COL
1

GTM

.5

1970

1980

1990

2000

20101970

1980

1990

2000

2010

Year
Graphs by iso alpha-3 code

Note: Total number of reshuffles on the Constitutional Tribunals: Chile 2, Colombia 1 and Guatemala 4. The Chilean Constitutional Tribunal was closed in 1973 and re-opened in 1981.

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Table 2: Explaining judicial turnover in Latin American high Courts, 1900-2006

2.1 Survival (logit) -0.580*** (0.087) -0.004 (0.065) 0.530*** (0.065) 0.133* (0.068) New military government Military regime Size of the court Constitutional Tribunal t t2 t3 Constant Ln sigma2 u 0.113 (0.118) 0.803*** (0.079) -0.040*** (0.005) -0.127 (0.129) 0.144*** (0.027) -0.014*** (0.002) 0.000*** (0.000) -1.921*** (0.124) 2.2 Random effects -0.675*** (0.095) -0.073 (0.076) 0.522*** (0.070) 0.147* (0.076) 0.032 (0.132) 0.932*** (0.096) -0.053*** (0.006) -0.243 (0.164) 0.205*** (0.032) -0.014*** (0.002) 0.000*** (0.000) -1.908*** (0.136) -0.713*** (0.268) 2.3 Rare events logit -0.580*** (0.084) -0.004 (0.066) 0.530*** (0.067) 0.133* (0.070) 0.113 (0.127) 0.804*** (0.089) -0.040*** (0.005) -0.121 (0.099) 0.143*** (0.026) -0.013*** (0.002) 0.000*** (0.000) -1.919*** (0.121) 2.4 Fixed effects logit -0.422*** (0.093) -0.192*** (0.070) 0.277 (0.308) 0.295*** (0.075) -0.144 (0.127) 0.973*** (0.091) -0.077*** (0.007) -0.591*** (0.146) 0.232*** (0.028) -0.017*** (0.002) 0.000*** (0.000) -3.403*** (0.249)

Justice appointed by current president Justice appointed by current ruling party New administration

New ruling party

Number of observations 16,993 16,993 16,993 16,993 Note: Robust standard error in parenthesis for model 2.1, 2.3 and 2.4. Model 2.3 clustered by justice. Model 2.4 omitted country intercepts and interaction terms to save space. *Significant at p<.10; **at p<.05; ***at p<.001

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Figure 3: Hazard function

Note: The horizontal axis represents the number of years in office. The vertical axis represents the logistic function (the predicted log-odds of the judges exit) according to Model 2.3

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Table 3: Conditional coefficients for changes of administration Country Argentina Bolivia Brazil Chile Colombia Costa Rica El Salvador Guatemala Honduras Mexico Panama Paraguay United States Uruguay Conditional Coefficient 0.765** 1.144*** -0.064 0.080 0.004 -0.174 0.773*** 0.839*** 1.851*** 0.681*** 0.156 0.844*** 0.277 -0.255 Conditional Standard Error (0.290) (0.211) (0.198) (0.179) (0.130) (0.186) (0.159) (0.195) (0.228) (0.153) (0.230) (0.249) (0.308) (0.269)

Figures reflect the conditional coefficients for Model 2.4, i.e., the sum of the baseline coefficient for New Administration plus the coefficient for the countryspecific interaction term (robust standard errors). *Significant at p<.10; **at p<.05; ***at p<.001

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Notes
1

For an more detailed and extensive list of works about judicial politics on the region, please

refer to (Kapiszewski and Taylor 2006).

2

For an exception, see Prez-Lin and Castagnola (2009). At this point it is important to point out that in nascent democracies vacancies not only occur

because a justice steps off the bench but also because presidents increase the number of sitting justices in the Court. Due to the natural evolution of the U.S. Supreme Court, the American literature does not take into account this type of vacancies.
4

Even though some of these works account for vacancies in the Supreme Court and others only

on the lower federal courts, all these studies use the same hypotheses to account for retirements in the judiciary. The only exception is the literature on state supreme courts since in this case scholars place special attention to the role of judicial elections and institutional variables in understanding the retirements of state supreme court justices (Hall 2001).
5

Maitra and Smyth (2005) found similar results when studying the determinants of judicial

turnover on the Supreme Court of Australia.

6

Presidents may also negotiate quotas of justices with opposition parties in Congress, in order

to achieve the majorities needed to appoint some party loyalists to the bench.
7

The incentives offered by the executive branch in order to promote judicial retirements may

be positive or negative, selective or indiscriminate. Presidents may offer special retirement packages, set up a mandatory retirement age, negotiate side-payments for salient justices (e.g., government posts for family members), or threat justices with impeachment, among other things. Although the literature on judicial politics in Latin America has emphasized the impeachment

21

threat, little is known about the actual instruments employed by presidents to induce judicial retirements.
8

We collected data from multiple historical sources (Supremo Tribunal Federal do Brasil 2008;

Corte Suprema de Justicia de la Nacion 2005b, 2005a; Rodrigues 1991a, 1991b, 2002; Alonso Godoy et al. 2003; Scribner 2004; Bercholc 2004; Molinelli et al. 1999; Aguilar Avils 2000; Senz Carbonell and Mass Pinto 2006; rgano Judicial de la Repblica de Panam 2003; Supreme Court of the United States 2008; Corte Suprema de Justicia de la Nacion 2001; Unidad Bibliogrfica del Supremo Tribunal de Justicia de Bolivia 2009). For Colombia, Guatemala, Honduras, and Uruguay we relied on primary sources found in local archives. Data for Paraguay was supplied by Instituto Desarrollo in Asuncin. Information for Uruguay is only available after 1906.
9

All Costa Rican constitutions during the twentieth century provided for indefinite reelection of

the Supreme Court justices, but the 1949 Constitution (at. 158) made re-appointment the default outcome unless the Assembly blocked it with a two-third majority.
10

Because the dependent variable is dichotomous with only 13.7% of the cases being 1s we

decided to run a Rare Event Logit (King and Zeng 2001).

11

All probabilities are the median prediction in a Bayesian simulation based on Model 2.3

(calculated using relogitq in Stata).

22

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