Legal Theory Blog

Peretti on Judicial Selection & Polarization

Terri L. Peretti (Santa Clara University) has posted Constructing Courts in Polarized Times on SSRN.  Here is the abstract:

This review of current research on the consequences of polarization for judicial selection seeks to direct it and our attention to a critical normative task: insuring that the selection process enables politically-responsible officials to construct representative courts. Two questions organize this analysis. The first addresses whether, despite polarization, courts can serve as a source of bipartisanship and moderation in the United States, as scholars like Rosen and Perry and Powe contend. The second question conditions the answer to the first and asks whether courts can be effectively directed in a politically polarized environment. Many recent assessments say "No," alleging that the current selection process is broken, characterized by bitter confirmation battles and appointments gridlock. However, these claims are frequently a historical and prone to hyperbole. Partisan polarization has not created a host of new problems for judicial selection. It has instead augmented and intensified pre-existing pressures on the judicial selection process, making perhaps too heavy a load the democratic task of constructing representative courts. We must be especially concerned with the potential for executive over-reaching, permitting presidents to appoint judges whose extreme views lack strong electoral support. Nonetheless, confirmation delay and the judicial filibuster are, in my view, signs of resilience in the judicial selection process; they represent logical and positive adaptations to pathological developments in our elective institutions like polarization.

Levy on Judicial Selection in Canada

Ron Levy (Griffith Law School) has posted Judicial Selection: Trust and Reform on SSRN.  Here is the abstract:

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Gulati & Benjamin on Disclosure of Nominations by Presidential Candidates

G. Mitu Gulati (Duke University - School of Law) & Stuart Minor Benjamin (Duke University School of Law) have posted Mr. Presidential Candidate: Whom Would You Nominate? on SSRN. Here is the abstract:

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election: we do not expect candidates to compete on naming the better slates of nominees. For the candidates themselves, not having to compete over nominees in the pre-election context has personal benefits - in particular, enabling them to keep a variety of supporters working hard on the campaign in the hope of being chosen as nominees. But, from a social perspective, this norm has costs. We propose that candidates be induced out of the status quo. In the modern era of candidates responding to internet queries and a vocal public asking questions via YouTube, it is plausible that the question - "Whom would you nominate (as Secretary of State or for the Court)"? - can be asked in a public setting. And maybe, if one candidate is behind in the race, he can be pushed to answer the question.

I very much enjoyed this very interesting paper.  On the implementation side, I wonder what would be done about FBI background investigations?  If not done pre-announcement, there would be the possibility of a huge political cost--in the event that damaging information were discovered post-announcement.  If done pre-announcement, there might be logistical problems.  FBI checks for all primary candidate picks seem impractical.  FBI checks post-convention would run into a very narrow time frame.

Thornton on Merit, Gender, and Judicial Selection

Margaret Thornton (Australian National University - ANU College of Law) has posted "Otherness" on the Bench: How Merit is Gendered (Sydney Law Review, vol. 29, No. 3, pp. 391-413, 2007) on SSRN. Here is the abstract:

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Choi, Gulati, and Posner Rank State Courts

Stephen J. Choi , G. Mitu Gulati and Eric A. Posner (New York University - School of Law , Duke University - School of Law and University of Chicago - Law School) have posted Which States Have the Best (and Worst) High Courts? on SSRN. Here is the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

A bit more from the paper:

In earlier work, we showed that the relationship between institutional design and judicial quality is complex, and does not lend much support to the conventional wisdom. Appointed judges write more frequently-cited opinions than elected judges do, but elected judges are more productive, while there seems to be no difference between their levels of independence.18 Judicial pay has little effect on judicial quality, except among elected judges, who are more productive when paid more.19 It is not the purpose of this Article to review or reproduce these findings. Our goal instead is to generate a ranking of the state high courts on the basis of the data that we collected for the earlier studies. We will argue that our ranking overcomes many of the defects of the U.S. Chamber of Commerce study, as well as those of earlier academic work.

Rankings make people uneasy. They seem to trivialize activities that are of public importance, and they may stimulate the ranked agents or institutions to engage in destructive competition or demoralize those that have no ability to escape from the bottom. The most serious objection to rankings is that they unavoidably rely on measures that neglect hard-toobserve but important aspects of performance. If nonetheless those who achieve a high ranking are rewarded with resources or public esteem, institutions will distort their missions so as to do well on whatever measures are used.20

We address this objection by making our rankings as transparent and flexible as possible. Readers might disagree about how to weight the different measures that we use, and we show how such disagreements may lead to different rankings of the state courts. The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function.21 Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted. Better still, if the stakes are high enough – and the amounts of money spent by institutions like the U.S. Chamber of Commerce on commissioning rankings suggest there are22 – competitor rankings should emerge that improve upon the prior ones.

A must read.  And even if these rankings are imperfect, they are certainly a huge improvement over the status quo.  Bravo!

Dillard on Judicial Independence

Amy Dillard (University of Baltimore - School of Law) has posted Separate and Obedient: The Judicial Qualification Missing from the Job Description (38 Cumberland Law Review 1 (2008)) on SSRN. Here is the abstract:

The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the Canons of Judicial Ethics, which may be the most reliable and pertinent standards for evaluating judicial temperament and aptitude. Legislators demonstrate discomfort with the power of judges, and they boldly seek to limit the power of the judiciary and to circumscribe the offices of Article III judges. Congress has at least threatened legislation to impeach judges, create term-limits, and reduce the number of appeals judges. Despite the rhetoric to abandon the use of a litmus test for judicial candidates, it remains apparent on the federal stage that legislators are, even if subconsciously, using one.

In Virginia, legislators openly apply a litmus test in the selection and reappointment processes for judges. With absolute control over the selection and reappointment process for all judges in the Commonwealth, members of the Virginia General Assembly, in session with no oral or written record and no method for capturing legislative history, increasingly ask pointed ideological questions to scrutinize judges who are carrying out their jobs ethically, in accordance with the law, and with courage. Virginia's original constitution granted control of the judiciary to its General Assembly. Throughout the 19th century, during two significant revisions of the Virginia Constitution, the General Assembly retained its complete control over the selection and reappointment of every judge in the Commonwealth. Today, the General Assembly maintains absolute control of the Commonwealth's Judiciary. As recently as 1970, the Commonwealth reviewed and retained her unique practice of granting absolute control over the judiciary to the General Assembly.

The problem of selecting and applying a litmus test is not exclusive to Virginia, but the unique appointment process creates a vortex of power for legislators to disable judges who take unpopular stands. If the point of appointing judges is to free them from populist criticism at the ballot box, then Virginia has not accomplished her goal. In fact, legislators confront judges in closed hearings with no transcript for their constituents, thus making it easier to confront judges with frank and base political criticism, bypassing the need for true assessment of performance and criteria based on judicial ethics, ability, and temperament.

The General Assembly maintains no legislative history or record of its proceedings. The history and process of judicial selection are entirely secret in Virginia, save for a few tenacious reporters' recollections. Accordingly, the data for this article is generally ephemeral, comprising newspaper articles and interviews with judges and other direct participants. Though my methodology is somewhat unconventional, it is the only approach I have discovered to obtain the information.

McLeon on Judicial Selection & Parisan Divisions on State Supreme Courts

Aman Liev McLeod (Rutgers, The State University of New Jersey - Rutgers University, Camden) has posted The Red-Blue Divide on the Bench: An Examination of the Effects of Selection Systems on Partisan Divisions in State Supreme Court Decisions on SSRN.  Here is the abstract:

This study explores at a very basic level how the partisan behavior of judges manifests itself on courts that use different judicial selection systems. Specifically, it examines how different reselection systems affect judges' propensity to form partisan coalitions in criminal cases, by looking at the voting habits of the justices on several state supreme courts over five years. The evidence indicates that partisan elections appear to promote the appearance of party line divisions, while systems that require judges to be reappointed have no effect on the incidence of party line votes. The evidence also indicates that although retention elections do not appear to have any significant effect on the incidence of party line votes, and that nonpartisan elections actually tend to decrease the incidence of party line votes.

Stras & Scott on Judicial Appointments

David Stras (University of Minnesota) & Ryan Scott (Department of Justice) have posted Navigating the New Politics of Judicial Appointments on SSRN. Here is the abstract:

This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he proposes that the Senate get tough by standing up to the President and rejecting any nominee who does not prove to be moderate, or who fails to give satisfactory answers at the confirmation hearings.

In this Review Essay, the authors note several flaws in Eisgruber's proposals, many of which are applicable to other, similar reform proposals advanced by other scholars. First, Eisguber offers an incomplete diagnosis of the reasons behind the growing politicization of the appointments process, underestimating in particular the prominent role played by interest groups and the media in shaping the process. The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates.

Second, drawing on a rich political science literature, the authors demonstrate why a "get tough" strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President. Like many other scholars in the area, Eisgruber fails to address the myriad tools available to Presidents to deal with Senate resistance. The basic and most powerful tool for Presidents is the strategic selection of Supreme Court nominees, especially those with excellent qualifications, which can make it difficult for Senators to delay or reject those nominees. In the face of an obstructionist Senate, Presidents can also draw upon their substantial institutional strength by "going public" and touting the qualifications and attributes of the nominee, by making or threatening a recess appointment, and by employing ordinary legislative techniques like logrolling strategies and credible veto threats. Strategic employment of these tools makes it more difficult for Senators of all parties to obstruct Supreme Court nominees and helps to explain why the vast majority of such nominees during the past century have been confirmed by the Senate.

Sunstein Replies to Prakash

Cass Sunstein has posted Of Snakes and Butterflies: A Reply on SSRN. Here is the abstract:

This brief essay, a reply to a forthcoming essay by Radicals in Robes by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when predictability calls for it; and the Supreme Court was right to refuse minimalism in the late 1930s. While minimalism is generally the proper approach to “frontiers” issue in constitutional law, its own pragmatic foundations suggest that constitutional law should not be insistently or dogmatically minimalist.

Prakash's review, also on SSRN, is Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors are Wrong for America.

Bruhl on Judicial Selection

Aaron-Andrew Bruhl (University of Houston Law Center) has posted If the Judicial Confirmation Process is Broken, Can a Statute Fix It? on SSRN. Here is the abstract:

Many observers believe that there is something seriously wrong with the current state of the judicial confirmation process, particularly that it features too much conflict and obstruction. This Article does not take sides on whether reform is necessary but instead examines the relatively neglected issue of the vehicle through which reform might take place – that is, the method of implementing whatever reform (if any) is thought desirable. In particular, this paper will take up the question whether the confirmation process could be reformed not through the vehicles that are usually proposed – a constitutional amendment, an change to internal Senate rules, an informal “deal” or norm – but instead through the less discussed mechanism of a statute that would govern the Senate's procedures. The statute might, for example, purport to bar filibusters of judicial nominations. While employing a statute might at first seem peculiar, there is in fact a large, growing, and interesting body of statutory law that governs internal rules of debate.

Is a statute a permissible method of reform in this context? This Article canvasses various potential impediments to employing a statute and concludes that the Constitution would not permit a statute to override the Senate's ordinary power to control its rules of debate. The reason that such a statute could not formally bind is that it would violate a structural principle of cameral procedural autonomy that is critical to the constitutional design. The Article nonetheless suggests that a confirmations statute might still have value to reformers. It might have great practical political effect even if it is not legally binding.

Very interesting and highly recommended.

I've written about one of Bruhl's issues--the relationship between executive and Senate power over the advice and consent function, see

The President's Power to Call Congress Into Executive Session as a Remedy for the Senate's Breach of its Constitutional Duty to Render Advice and Consent

and

Is the filibuster of judicial nominees unconstitutional? And if it is, what can be done?