With two Appellate Body appointments coming soon, this paper -- entitled "Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization" -- by Manfred Elsig and Mark Pollack is very well-timed. From the intro:
We present a view of an AB selection process that, far from representing the pure search for expertise, is deeply politicized and offers member-state principals opportunities to influence AB members ex ante. WTO member states can and do influence the endogenous preferences of the members of the AB through a rigorous screening process that pays close attention to the views of candidates on specific issues of interest to those states. We also find some anecdotal evidence that member states may use the prospect of judicial renomination and reappointment as a source of ex post influence over sitting AB members.
We further demonstrate that the AB nomination process has become progressively more politicized during its first decade and a half. During the earliest nominations to the AB, we demonstrate, WTO member states attempted to secure the appointment of members of the AB from their own states, but otherwise opted for extensive legal and policy experience, largely consistent with the trusteeship view. With the passage of time, however, as the AB adopted controversial decisions with profound implications for member states’ sovereignty and economic interests, WTO member governments became far more concerned about judicial activism and more interested in the substantive opinions of AB candidates, systematically championing candidates whose views on key issues most closely approached their own, and opposing candidates perceived to be activist or biased against their substantive preferences.
Read the whole thing, as they say.
