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A Winner's Curse?: Promotions from the Lower Federal Courts

42 Pages Posted: 7 Dec 2013  

Stephen J. Choi

New York University School of Law

G. Mitu Gulati

Duke University School of Law

Eric A. Posner

University of Chicago - Law School

Multiple version iconThere are 2 versions of this paper

Date Written: December 5, 2013

Abstract

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of judicial performance, that competence seems to matter in promotions in that the least competent judges do not get elevated. But the judges who score the highest on our competence measures also do not get elevated. So, while there is no loser’s reward, there may be something of a winner’s curse, where those with the highest levels of competence hurt their chances of elevation.

Suggested Citation

Choi, Stephen J. and Gulati, G. Mitu and Posner, Eric A., A Winner's Curse?: Promotions from the Lower Federal Courts (December 5, 2013). Available at SSRN: https://ssrn.com/abstract=2364144 or http://dx.doi.org/10.2139/ssrn.2364144

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 )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Eric A. Posner

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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