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http://ssrn.com/abstract=473281
 
 

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Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance


Stephen J. Choi


New York University School of Law

G. Mitu Gulati


Duke University - School of Law

February 17, 2004

UC Berkeley Public Law Research Paper No. 141; Georgetown Public Law Research Paper No. 473281; Georgetown Law and Economics Research Paper No. 473281

Abstract:     
The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the "most meritorious" and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates' likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side (these days, the Republicans) claims that it is proposing certain candidates based on merit, while the other (the Democrats) claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on certain key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past the impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians' claims of merit. Being able to test those claims helps make transparent the occasions on which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a "merit" standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology.

The Article runs such a tournament using data on opinions authored by active federal circuit court judges from one common time period: the beginning of 1998 to the end of 2000. The focus on a common time period helps put judges in the tournament on a level playing field. We then generate a series of measures of merit focusing on (a) productivity, (b) opinion quality, and (c) judicial independence. While not perfect, our measures interject a greater focus on merit in the current nomination process (thereby flushing out previously non-transparent motives based on ideology). With our data, we are able to test the claims of merit that the next President will inevitably make when he announces one or the other of his favorite circuit court judges as the nominee for the Supreme Court.

Number of Pages in PDF File: 103

Keywords: supreme court; judges; tournament

JEL Classification: K23, K40, K41

working papers series





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Date posted: December 7, 2003  

Suggested Citation

Choi, Stephen J. and Gulati, G. Mitu, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance (February 17, 2004). UC Berkeley Public Law Research Paper No. 141; Georgetown Public Law Research Paper No. 473281; Georgetown Law and Economics Research Paper No. 473281. Available at SSRN: http://ssrn.com/abstract=473281 or http://dx.doi.org/10.2139/ssrn.473281

Contact Information

Stephen J. Choi (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Gaurang Mitu Gulati
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
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