20 Pages Posted: 17 Feb 2014
Date Written: November 1, 2004
In this invited response to Stephen Choi & Mitu Gulati, "Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance," 78 S. CAL. L. REV. 23, 30 (2004), I analyze the central normative assumptions underlying Choi and Gulati’s "Tournament of Judges." To that end, I explore the concept of "merit" as it applies to the selection of individuals for important institutional positions. I suggest that an ascription of merit can be understood to entail a claim that an individual exemplifies the aptitudes, excellences, and virtues of a particular office or position. I argue that merit in this sense does not give rise to a right to be selected, and that the selection of a candidate who is not the most "meritorious" in the descriptive sense might nevertheless be justified, if supported by other values and principles implied by our institutional commitments.
Keywords: merit, institutional desert
Suggested Citation: Suggested Citation