Can a leopard change its spots? Strategic behavior versus professional role conception during Ukraine's 2014 court chair elections

• Date: 01 October 2020
• Author: Maria Popova
• Published date: 01 October 2020
• DOI: http://doi.org/10.1111/lapo.12156

ORIGINAL ARTICLE

Can a leopard change its spots? Strategic behavior

versus professional role conception during Ukraine’s

2014 court chair elections

Maria Popova

Department of Political Science, McGill

University, Quebec, Canada

Correspondence

Maria Popova, Department of Political

Science, McGill University, 855 Sherbrooke St

West Montreal, Montreal, QC H3A 2T7,

Canada.

Email: maria.popova@mcgill.ca

Funding information

Social Science and Humanities Research

Council of Canada

Abstract

Do judges respond to institutional and strategic incen-

tives or do they strictly follow dominant professional

role conceptions? This article weighs in by exploring

whether an ideational shift toward judicial empower-

ment and independence can germinate from institu-

tional reforms. Ukraine’s 2014 Euromaidan revolution

and the comprehensive judicial reform adopted in its

wake provide a test of the competing theoretical

accounts. A judicial lustration law sacked all incum-

bent court chairs, who had been appointed by the exec-

utive, and gave Ukrainian judges the right to elect new

chairs via secret ballot. I analyze this radical step

toward judicial self-government using an original data

set with individual- and court-level data. The key find-

ing is that less than a fifth of Ukrainian judges

embraced their newly granted agency and elected a new

chair for their court, whereas the overwhelming major-

ity followed dominant professional norms of deference

and reelected the sacked court chairs. This finding

holds for all rungs of the judicial hierarchy and for all

regions of Ukraine. Even protégés of ousted president

Yanukovych won the secret ballot vote by their peers

more often than they lost it. Beyond Ukraine, these

results suggest that empowering individual judges in

the highly hierarchical structure of a civil law judiciary

is unlikely to lead to a judicial behavior shift, at least in

the short run.

1|INTRODUCTION

The comparative judicial politics literature contains a lively debate about the determinants of

judges’behavior vis-à-vis powerful political actors. A strategic camp emphasizes structural

DOI: 10.1111/lapo.12156

©2020 University of Denver/Colorado Seminary and Wiley Periodicals LLC

Law & Policy. 2020;42:365–381. wileyonlinelibrary.com/journal/lapo 365

and institutional characteristics of both the judiciary and the political systems

(e.g., Ginsburg, 2003; Helmke, 2002; Popova, 2012; Ramseyer, 1994). An ideational camp

counters that judges’conception of their professional role is more consequential

(e.g., Hilbink, 2006; Hilbink, 2012; Kapiszewski, 2012; Scheppele, 2006; Widner, 1999). This

article enters the debate by exploring whether an ideational shift toward judicial empower-

ment and independence can germinate from institutional reforms. Specifically, where would

the first judges to diverge from a dominant professional role conception of deference be

located within the judiciary? Or is it in fact the case that a leopard cannot change its spots

and, thus, significant turnover in the judicial corps is necessary for the auspicious strategic

environment to foster new professional norms? These questions are not only theoretically

important but also relevant to policy, as rule-of-law reformers around the world grapple with

the task of creating powerful and independent judiciaries.

Ukraine’s 2014 Euromaidan revolution and the comprehensive judicial reform adopted in

its wake provide an opportunity to explore these questions empirically. The centerpiece of the

reform program was a judicial lustration law, which enjoyed broad support by domestic civil

society and international actors. The law sacked all incumbent court chairs, who had been

appointed by the executive, and gave Ukrainian judges the right to elect new chairs in a secret

ballot. I analyze this radical step toward judicial self-government using an original data set with

individual- and court-level data. The key finding is that less than a fifth of Ukrainian judges

embraced their newly granted agency and elected a new chair for their court, whereas the over-

whelming majority followed dominant professional norms of deference and reelected the sacked

court chairs. This finding holds for all rungs of the judicial hierarchy and for all regions of

Ukraine. Even protégés of ousted president Yanukovych won the secret ballot vote by their

peers more often than they lost it.

Beyond Ukraine, these results suggest that empowering individual judges in the highly hier-

archical structure of a civil law judiciary is unlikely to lead to a shift in judicial behavior, at

least in the short run. Regardless of how auspicious the strategic environment is and how

intense rule-of-law demands from local civil society and international partners might be, profes-

sional norms are sticky. Civil law judges may resist reforms aimed at enhancing their autonomy

and inertly continue to follow their superiors within the judicial hierarchy.

2|STRATEGIC INCENTIVES, PROFESSIONAL ROLE

CONCEPTION, AND JUDICIAL SELF-GOVERNMENT

According to strategic theories, judges assert their independence and “speak law to power”

when political, structural, and institutional factors align to create an auspicious environment.

In such an environment, politicians believe that it is in their interest to create or tolerate inde-

pendent and powerful courts, and judges know it. Intense political competition incentivizes poli-

ticians to support judicial independence as insurance against legal persecution and a rollback of

their policies after they lose power (e.g., Ginsburg, 2003; Ramseyer, 1994). Fragmentation

thwarts incumbents who may want to pressure the courts anyway (e.g., Chavez, 2004;

Finkel, 2005). Demand for the rule of law among domestic actors (Hendley, 1999; Pistor, 1996)

or foreign direct investors (Moustafa, 2007; Wang, 2015) or pressure from the international

community (Spendzharova & Vachudova, 2012) have all been said to reduce political incum-

bents’incentives to control the courts and enhance judges’incentives and opportunities to con-

strain politicians.

Professional role conception theories instead argue that the right strategic environment is

neither necessary nor sufficient for producing powerful and independent courts. Judicial behav-

ior is determined largely by the professional norms that judges are socialized into when they

join the bench. Some judiciaries emphasize assertiveness and independence from politicians,

366 CAN A LEOPARD CHANGE ITS SPOTS