Empirical Measurement of Judicial Performance: Thoughts on Choi and Gulati's Tournament of Judges?

Abstract:     
This paper was written as part of a symposium on Stephen Choi and Mitu Gulati's article, "A Tournament of Judges?", 92 Cal. L. Rev. 299 (2004), that will be published in the Florida State University Law Review. Part I of this commentary examines the assumptions driving Choi and Gulati's proposed tournament of judges. I conclude that those assumptions may not be correct, or at least require some elaboration to support the strong claims that Choi and Gulati make in their paper. My criticisms are intended not to dismiss the proposal, but rather to encourage Choi and Gulati to refine it. They have already shown that a tournament can be run fairly easily, and that it can produce some surprising results. Explaining and defending their assumptions may increase the possibility that it is taken up by participants in the process. In Part II, I argue that if we abandon an extreme form of the tournament, i.e., "one that bars the president and the Senate from putting forward merit-based rationales outside [a] list of objective factors," a tournament may be extremely useful to many of the interested parties in the selection and confirmation process even as I doubt that it could be as transformative as Choi and Gulati sometimes suggest. A brief conclusion follows in Part III.

Number of Pages in PDF File: 16

Keywords: Stephen Choi, Mitu Gulati, tournaments, judicial selection, appointments process, Supreme Court

JEL Classification: K00

Accepted Paper Series