The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

Abstract: Constitutional courts are often considered to be 'veto players' or 'third chambers of parliament'. However, no attention has been paid to the composition of European constitutional courts and how they make decisions. Do European judges exhibit political preferences as their US counterparts do? If so, it is important to know who selects the judges as the selection determines the outcome. This article analyses the composition of the German Bundesverfassungsgericht and the French Conseil constitutionnel. It tests the correlation between the party affiliation of the pivotal judge and oppositional success empirically for all abstract reviews filed between 1974 and 2002. In both countries the likelihood of an oppositional victory or defeat varies with the ideological position of the pivotal judge. This leads to the conclusion that European judges decide on the basis of their political preferences like their US counterparts.