Perroud, Thomas

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A Male, White and ConservativeConstitutional JudgeThomas Perroud 2022-05-03T15:32:47In February and March 2022, three new members have been appointed to theFrench constitutional court, the Conseil constitutionnel („Constitutional Council”):Jacqueline Gourault, Véronique Malbec and François Séners will replace ClaireBazy-Malaurie, Nicole Maestracci and Dominique Lottin. Patrick Wachsmannrightly criticized the conflicts of interests affecting the three new judges: JacquelineGourault is a former politician and will be asked to judge laws she herself hadbeen promoting. Véroniques Malbec, a civil judge, was a supervisor of the publicprosecutor who closed a complaint against Richard Ferrand – the very personwho proposed to appoint her. François Seners, was director of the cabinet of thepresident of the Senate (from 2014 to 2017) who appointed him.A closer look at the new composition of the Council shows that France’sconstitutional court is composed of a majority of male, white, elitist graduates with aright-wing tilt, drawn from the ranks of politicians and civil servants. This is the groupof persons that gets to interpret the Constitution. In a broader sense, it is actually agood portrait of the current French political system, which seems to resemble somekind of oligarchy.A new composition of the Constitutional CouncilThe nomination of judges to the French Constitutional Council lies in the handsof the President of the Republic, the President of the National Assembly and thePresident of the Senate. Each can propose three out of the nine members of theCouncil. The proposed names are then examined by special commissions in theNational Assembly and the Senate, but their veto power is limited.The new appointments have no significant effect on the member’s age, whichremains in the high range of 66-67 and the Council is not departing from itsreputation of a “pensioners’ club”, to use an expression coined by DominiqueSchnapper, a former member of the Council.1)Une sociologue au ConseilConstitutionnel, Gallimard, Coll. NRF Essais, 2010The new composition of the court is a step backwards as far as the representationof women is concerned, since the ratio of men to women has gone from 5 men to 4women to 6 men to 3 women.The absence of ethno-racial diversity, already noted by Nicolas Bau and Liora Israël,who have carried out the most complete analysis of the Council’s sociology since itscreation2)Nicolas Bau and Liora Israël, „Quelques éclairages sociologiques sur lacomposition du Conseil constitutionnel“, in Le Conseil constitutionnel à l’épreuve de- 1 -la déontologie et de la transparence, Elina Lemaire, Thomas Perroud [ed.], InstitutFrancophone pour la Justice et la Démocratie, forthcoming – 2022 is troubling andGaston Monnerville remains today the only non-white justice in the history of theCouncil.Meanwhile, the new appointments have made the Council more diverse in terms ofgeographic origins. The three outgoing members were born in Paris and the newmembers make Parisians a minority.A right-wing courtWhile in the United States public opinion is worried about a Supreme Court that istilting to the right, the French society does not seem to realise that there is only oneleft-wing member remaining on the Constitutional Council: its President LaurentFabius.We know today that the political affiliation of Council members matters. Empiricalstudies by Raphaël Franck and Romain Espinosa have highlighted the Council’slack of political independence and show how much its decisions are impacted by thepolitical affiliations of its members.The majority of the current Council members are former politicians: Laurent Fabius(Socialist party “PS”), Jacques Mézard (President Macron’s party “LREM”), FrançoisPillet (Conservative party “LR”), Alain Juppé (LR) and Jacqueline Gourault (LREM).The Constitutional Council is thus composed of a majority of right-wing politicians.Bringing politicians to a Constitutional Court is an unfortunate French specificity,which comes with a high risk of bias. Politicians who were involved in draftinglaws will now be called to judge the constitutionality of these laws. If we look at thepolitical colour of the Council based on the political affiliation of the people whoappointed the members, the situation is even clearer: Laurent Fabius remains thelast man on the left, the rest of the Court being composed of people appointed byLREM or LR politicians. The person who has appointed most members because ofhis longevity as president of the Senate is Gérard Larcher. He is a member of LR.A court of civil servantsAnother striking point is the strong representation of civil servants, including thosepoliticians who began their careers in the civil service. There are six senior civilservants in the new Council. Three of them from the Council of State, which is thelegal advisor of the Government and the supreme administrative jurisdiction inFrance, two others from the judiciary and Alain Juppé from the Inspectorate Generalof Finance. This finding is consistent with the conclusion of the study by NicolasBau and Liora Israël that the share of senior civil servants has increased since theCouncil’s creation in 1958.The group of civil servants is not homogeneous, but what distinguishes Frenchcivil servants who become constitutional judges and could explain their promotion,- 2 -is certainly that they have had a career in the administration of justice as headsof courts rather than as prominent judges whose opinions would be known andcommented. French judges do not give reasons for their judgments and alwaysjudge collectively. It is therefore more difficult for them to make a career out of theiropinions than for judges in the United States or the United Kingdom, for instance.The presence of too many civil servants is potentially problematic, as the Councilcould give the impression of bias if it is called to review laws imposing moreethics on civil servants, for example, as it has been the case in the past when theConstitutional Council has quashed provisions regulating conflicts of interests ofsenior civil servants.The increasing presence of senior civil servants at the constitutional Councilrepresents a significant change over time. We know today about the porositybetween the senior civil service and politics in France (from 1987 to 2017, 47%of ministers came from the high civil service), and the composition of the Councilreflects this domination. The presence of administrative elites on the Council raisesissues about the legitimacy of the institution as they do not have the necessaryexpertise to enforce the Constitution against acts of Parliament and have a cultureof service to the executive. France is an administrative State, traditionally, so thisshould not come as a surprise but the grip that civil servants have gained on theConstitution is not a sign of a pluralist democracy.A court with little constitutional expertiseLegal competence is not required to become a member of the Council and none ofits members have a particular training in constitutional law. However, the Council stillhas some legal experience. Two of the members are judges who graduated fromthe École nationale de la magistrature (the National School for the Judiciary thattrains civil court magistrates), all of whom studied law, and two other members hadbeen lawyers before being politicians. That makes four lawyers. The three memberswho are also members of the Council of State (the Supreme Court for administrativedisputes in France) have necessarily been led to handle public law, even if theydidn’t study law.Even if age and experience might be considered important, contemporary legalknowledge would certainly also be relevant and useful.A court of ENA graduatesAnother important observation about the composition of the Council is that all ofits members were educated in the French elitist grandes écoles (universities likeHEC, École nationale d’administration (ENA), École normale supérieure (ENS)and Sciences Po Paris). The grandes écoles are a key to the system of power inFrance’s private and public sectors and their recruitment is very unequal. They arealmost closed to the poor, very difficult to get in for women and mostly for Parisians.Most prominent politicians in France come from ENA or Sciences Po Paris. The- 3 -French system of higher education is divided in two: a small group of grandes écoleseducates a small minority of the population (less than 1%) while universities dealwith the mass of students. The Constitutional Council is a good mirror of this powerstructure. Among the members of the Constitutional Council, there are two graduatesof the ENS (Laurent Fabius and Alain Juppé), four graduates of ENA (LaurentFabius, Alain Juppé, Michel Pinault and François Seners), two graduates of the ENM(Dominique Lottin and Véronique Malbec) and one from HEC (Michel Pinault). AlainJuppé and Laurent Fabius graduated from SciencesPo Paris and François Senersfrom SciencesPo Strasbourg. The presence of the grandes écoles is important,especially ENA, corresponding to the rise of senior civil servants in the Council.ConclusionIn conclusion, the Council is composed of a majority of male, old, white, elitistgraduates with a right-wing tilt, drawn from the ranks of politicians and civil servantswithout much expertise in constitutional law. This raises questions, but unfortunately,public debate has not picked up on this which might be the sign of a weary society,not responsive to the most blatant signs of power capture.It is in terms of allegiance a politically right-wing council that fails to representthe diversity of French society. There is an absence of political pluralism inthe constitutional court and the omnipresence of civil servants is a mark of thedysfunction of French democracy. This situation could be interpreted as the abolitionof jurisdictional checks and balances and therefore as a weakening of democracy,which can only be alive through dialogue between the powers.The Council also mirrors the deep inequality that characterizes French political elitesand is the mirror of a state that is no longer representative of its society, that is nolonger even concerned with representing the pluralism of interests. This is not asituation characteristic of a liberal democracy.  References• Une sociologue au Conseil Constitutionnel, Gallimard, Coll. NRF Essais, 2010• Nicolas Bau and Liora Israël, „Quelques éclairages sociologiques sur lacomposition du Conseil constitutionnel“, in Le Conseil constitutionnel à l’épreuvede la déontologie et de la transparence, Elina Lemaire, Thomas Perroud [ed.],Institut Francophone pour la Justice et la Démocratie, forthcoming – 2022- 4 -

A Male, White and Conservative Constitutional Judge

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A Male, White and Conservative Constitutional Judge

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