Methodology: An unusual, but fruitful, comparison

Comparing the Colombian and Chilean Constitutional Courts might appear, initially, as unusual as both tribunals have divergent profiles, especially in terms of rights activism. Colombia’s court (created by a new constitution in 1991) is renowned for its independence, assertiveness, and rights activist trajectory in a country where the judicialization of politics has been pronounced (Uprimny and García Villegas Reference Uprimny and García Villegas2004; Rodríguez Garavito and Rodríguez Franco Reference Rodríguez Garavito and Franco2015; Nunes Reference Nunes2010; Botero Reference Botero2023). By contrast, the Chilean constitutional tribunal (created in 1980) was born under the weight of deeply rooted authoritarian legacies following the Pinochet dictatorship (Barros Reference Barros2002; Hilbink Reference Hilbink2011). It is part of a judiciary that has been, overall, decidedly more muted on the rights enforcement front than the Colombian one (Botero Reference Botero, Falleti and Parrado2018; Couso and Hilbink Reference Couso, Hilbink, Helmke and Rios-Figueroa2011; Huneeus Reference Huneeus2010). Both courts have played important roles in their own country’s political dynamics within their different profiles.

Despite these differences, comparing the two courts from the perspective of their selection mechanisms makes sense. In focusing on the behavioral effects of mixed selection mechanisms, Tiede invites us to analyze these Courts’ output and their trajectories from a different angle. This is only possible thanks to the author’s noteworthy data collection effort yielding information on both individual choices (looking at the votes of judges) and collective decisions (looking at decisions made by the Court as a whole). This information is used as the basis of quantitative analyses, which are complemented and enriched with archival research, a review of key decisions, secondary sources, as well as interviews with experts, judges, and court staffers in both Bogotá and Santiago.

Tiede’s database is restricted to cases of abstract constitutional review of laws approved by the legislature serving at the time of review (p. 149). As she notes, this restriction helps buttress the comparison since, beyond this sample, the two Courts deal in widely different types of review, with the Colombian having a much more expansive portfolio. The delimitation is welcome precisely because of the courts’ different levels of assertiveness in other areas. In parallel, reading through this carefully crafted book highlights the need to know more about these courts: the effects of judicial selection processes on other kinds of rulings, including concrete review, and across topics, particularly rights-based decisions. Perhaps therein lie other clues to explain these tribunals’ dissimilar trajectories.

Overall, Tiede’s methodological transparency is one of the book’s strengths. The careful description of the underlying data and of her coding and modeling choices allow the reader to dive deeply into the mechanics of the analysis in a way that not all studies do.

Impacts of mixed selection mechanisms

Tiede first lays out a theory of how mixed selection mechanisms can impact judicial decision-making in constitutional courts (Chapter 1). Her book stands in contrast to works informed by the attitudinal model of judicial decision-making, which assumes justices that are unconstrained to follow their—partisan—policy preferences. One of the key points the book persuasively makes is that in courts with mixed selection mechanisms, it is not enough to look at partisanship to understand judges’ choices. For her part, Tiede recognizes the importance of the institutional context that constrains choice, but she also wants to study if and how the appointment of judges that are nominated by external institutions (elected and non-elected) might have an impact on willingness to strike down laws. Her analyses include a wealth of evidence that shows that judges picked by different institutional selectors have, as Tiede puts it, “a distinct voice” (p. 163) and, consequently, impact. To this end, she evaluates the influence of institutional selectors on judges’ decisions (Chapter 6). She finds that in Chile, presidential and legislative appointees to the Constitutional Tribunal have a higher likelihood of striking down laws, in contrast to those appointed by the Supreme Court, while in Colombia, the judges nominated to sit on the Constitutional Court by the Consejo de Estado (Council of State, the highest administrative tribunal) have a higher likelihood of vetoing legislation than Presidential or Supreme Court nominees.

These findings raise an important question that Tiede is aware of: why these differences? She states that “judges’ constitutional adjudicator type and their behavior are defined by the selecting institutions’ characteristics and interests as well as the selection process itself.” She goes on to suggest that different institutions have different notions of what an ideal constitutional adjudicator might be, including the institution’s mission, and that candidates nominated by the different institutions know this. At the same time, she notes that the characteristics of mixed selection processes probably result in judges who represent majority or consensus positions in complex institutional settings. I agree with Tiede that judges understand the basic needs and mission of their nominating institution and that their choices are shaped by that understanding. Since the existence of distinct institutional voices lies at the heart of her argument, I wanted to know more about these distinct institutional voices—in general, and in the Colombian and Chilean contexts in particular. Ultimately, suggesting that such differences hinge on self-perception means that they depend on ideas, on how judges conceive of their role and that of their institution. Understanding those different voices, filling the labels with content would benefit from attention to the judges’ ideas and the two countries’ legal cultures. Precisely because the book takes political context seriously and takes the time to flesh out the institutional background of both tribunals (Chapters 4 and 5), I see an opportunity for future research to dialogue vigorously with ideational arguments and buttress the discussion around the importance of different institutional selectors on judicial behavior.Footnote ¹

Additionally, existing research could help fill in the blanks with regard to the specific content of these voices in different locales: certainly, in Chile and Colombia, but also in other cases with similar selection processes. For example, Tiede’s findings speak directly to research on legal cultures in Latin America; with reference to those works, the dampened and deferent stance of the Chilean Supreme Court nominees is easy to understand (see, for example: Couso Reference Couso, Couso, Huneeus and Sieder2010). Similarly, the consistent pattern of greater willingness to hand down unconstitutional decisions from judges nominated by the Colombian Consejo de Estado might come into sharper focus in light of research underscoring its distinct and changing profile (Guzmán Jimenez Reference Guzmán Jimenez2017; Páez, Lamprea Montealegre, and Vallejo Piedrahita Reference Páez, Lamprea Montealegre and Vallejo Piedrahita2017).

Tiede also evaluates the effects of institutional selectors on the courts’ rulings, including evaluating panel effects. In the context of a tribunal, evaluating panel effects means looking at whether the decisions of individual judges are influenced by the presence of groups of judges with different characteristics—in this case, groups nominated by specific institutions. Throughout the book, the author proposes general hypotheses that speak to the literature while simultaneously taking the context and institutional history of her two cases seriously to inform the formulation of some country-specific hypotheses. She does this with care and with interesting results as she explores the factors that influence the courts’ decisions (Chapter 7), including the different types of laws and processes that might have different effects in Colombia and Chile. In studying the effects of court composition, for example—how changes in the number of judges nominated by different institutions might change the propensity to strike down laws—she accompanies the statistical analyses with vignettes of real decisions by both tribunals. I particularly appreciated that evidence is presented not just for cases that confirm the author’s hypotheses but also for rulings that do not neatly fit that pattern, including a discussion as to why.

Evaluating the impact of partisan affiliation

As mentioned earlier, the book is in conversation with and challenges the assumptions of the attitudinal model, which reduces judicial decision-making to partisan affiliation. Tiede recognizes that partisan affiliation matters, and she includes it in her analysis, but she shows that the profile of the nominating institutions also plays a role, and often a more prominent one. Since the attitudinal model is such an important reference point to her analysis, how she conceives of and codes the effects of partisan affiliation, or closeness, matters a great deal, as both her cases are multiparty countries. Comparative studies of judicial behavior that incorporate partisan influence often run into trouble, understandably, in capturing the complex interplay and influence of multiple partisan vehicles. Tiede faces a challenge on that front: she studied Colombia between 1992—2014 and Chile between 1990—2016, a time when both party systems were undergoing significant changes.

In Tiede’s analysis, Colombian justices are classified as having been close to one of two political parties: Liberal or Conservative, the two traditional parties that had nominated politics for most of the 20^th century. She argues that, through the years that her book encompasses, though other, newer parties existed, judges were associated only with those two. This is an incomplete picture: on the one hand, the bipolar dynamic had begun to break down even before the 1991 Constitution came into being (Gutiérrez Sanín Reference Gutiérrez Sanín2007). Moreover, the new constitution further fragmented the party system with its new flexible rules for the creation of political parties. It is true that the death of the two traditional parties was not immediate, and one could argue that through the 1990s, a binary classification made sense. However, classifying nominees as close to only two options after 2000 sidesteps very important changes, including the rise of Alvaro Uribe and his right-wing uribismo. Congressional dynamics were fluid in the early 2000s, and assuming that only two political forces were at play is a simplification of how partisan forces exerted influence within the judiciary and of how the Senate intervened in the selection process. In the case of Chile, Tiede distinguished between three kinds of partisan associations: Concertación, Right and “Under Junta” nominees. It would have been interesting to allow for further variation in the analysis of the Colombian justices and their rulings.