The Utility of Opacity in Judicial Selection

Abstract

Does too much transparency in the selection of judges undermine the independence of the judiciary? This Essay seeks to provide insight into answering this question by focusing on the opaque process by which federal bankruptcy judges are selected. Part I begins with an account that anchors the concepts of judicial independence and judicial accountability to the concept of judicial quality. It proceeds to situate within this account the selection process, suggesting that the process can function as a form of judicial accountability, albeit one that diminishes judicial quality in those instances where the process becomes politicized. A brief discussion follows regarding the concept of transparency in the context of the selection process, with emphasis on the distinction between transparency of the process itself and transparency of the judicial candidates. I then explain how process transparency may reduce the utility of a candidate transparency requirement and thus undermine judicial quality. Part II suggests that moving to an opaque process may solve this problem and uses the selection of bankruptcy judges as an example. The Essay concludes that process opacity may prevent candidate transparency from being co-opted for political ends, thus improving judicial quality. Although the scope of the Essay is limited to discussing appointment systems, rather than election systems, my hope is that it will shed new light on proposed selection reforms in both systems by prompting others to consider the utility of opacity in judicial selection.

Keywords: judicial appointments, judicial independence, judicial selection, judicial accountability, judicial quality, bankruptcy judges