Prof. Ginsburg’s comparative work on judicial councils (i.e., judicial appointments commissions) has been cited by the Supreme Court in the leading opinion striking down the constitutional amendment and the statute instituting the National Judicial Appointments Commission (Supreme Court Advocates-on-Record Association v. Union of India). In an e-mail interview with me [Vasujith Ram], Prof. Ginsburg discussed the collegium and the National Judicial Appointments Commission in the light of his scholarship in the area:

Q: You have analyzed judicial councils from the perspective of law and economics, based on principal-agent theory. How would you analyze India’s collegium system of judicial appointments?

A: Judges, ultimately, are agents of society, and so should serve the public interest.  The question is how to set up a system of judicial appointments that would maximize that possibility.  The collegium system is the paradigm example of a self-appointing mechanism for judicial appointments, and so if one believes that existing judges are the highest guardians of the public interest, it is a good system.  The alternative is a system that reflect inputs from other actors, such as politicians who are also representatives of the public. Which system is better comes to down to one’s relative trust in judges as opposed to other possible appointers.

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