Here are Manfred Elsig, Mark Pollack and Gregory Shaffer writing about the Appellate Body reappointment controversy for the Monkey Cage blog on the Washington Post website:
2) What’s at stake
What’s at stake here is not just the fate of Chang but the independence of the international judiciary, in the WTO and beyond. Social science and legal research has documented past episodes of the U.S. politicization of WTO judicial appointments, as well as examples of the politicization of international courts more generally.
Sure, many in the United States are accustomed to hearing political arguments about U.S. judicial appointments, particularly when a U.S. Supreme Court nomination is up for discussion. Elsewhere in the world, however, the process of judicial selection is generally less politicized.
At the WTO, selection of AB judges began in 1995 as a largely technocratic enterprise, but recent research makes clear that the WTO judicial appointment process has become progressively more politicized over the past two decades, with the United States playing the leading role in such politicization. Candidates for the Appellate Body have come under increasingly close scrutiny — and frequently are blocked if their previous writings appear problematic to the more powerful member states.
The politicization of WTO judicial appointments is aggravated by the fact that judges at the WTO (and most other international courts) do not enjoy life tenure but serve for short, renewable terms: nine years for judges at the International Court of Justice, six years for the European Court of Justice and a mere four years for the WTO’s AB judges. This means that most international court judges face the prospect of having their reappointments blocked, either by the states that nominated them (typically their home state) or by other states.
In 2011, the United States blocked the reappointment of Jennifer Hillman, a widely respected U.S. member of the AB, raising early concerns about the AB’s judicial independence. In 2013-2104, the the United States blocked consensus over James Gathii, a chaired law professor in Chicago who would have been the first and only black African on the Appellate Body. The WTO thus needed to restart the nomination process while the position lay vacant.
The U.S. action to block Chang’s reappointment is considered an escalation because for the first time it involves the reappointment of a non-U.S. judge. Over this period, the USTR even pressed to meet separately with AB judges who were up for renomination while the judge was sitting in cases in which the the United States was a party. WTO rules prohibit ex partemeetings, and the U.S. demands raised questions of legal ethics.
The very principle of judicial independence comes under attack when sitting judges are forced to contemplate the likely response of states with the power and the willingness to deny their reappointment at the end of a four-year term.
