24 Pages Posted: 8 Sep 2004
Date Written: September 7, 2004
How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit - we want judges who are excellent. But Choi and Gulati have gotten something crucial terribly wrong: the selection of judges on the basis of measurable performance criteria would lead us away from true excellence. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; a tournament of virtue would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game.
I begin in Part II, "What is Judicial Excellence?," by tackling the tough problem that Choi and Gulati avoid - the explication of a theory of virtue for judges. The judicial virtues include: (1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom.
In Part III, "Discerning Excellence," I discuss the question as to how we can tell whether candidates for judicial office are bad, which incompetent, and which are truly excellent. Three technniques for discerning judicial excellence are discussed: (1) screening for judicial vice; (2) detection of judges who possess practical wisdom; and (3) the recognition of judges whose record reveals a respect for the law.
Part IV, "The Mismeasurement of Virtue," engages the idea of quantitative measures of judicial performance as a proxy for excellence. In this section, I argue that citation rates, productivity measures, and independence - as measured by Choi and Gulati - are poor measures of true judicial excellence. A real world tournament of judges, moreover, would be gamed, leading to the selection of vicious rather than virtuous judges.
Finally, Part V, "Conclusion: The Redemption of Spectacular Failure." I argue that Choi and Gulati's idea is that rare and valuable thing - an idea that is both completely wrong and wonderfully illuminating.
Keywords: tournament, judicial selection, virtue jurisprudence, judicial vice, virtue, vice, practical wisdom
Suggested Citation: Suggested Citation
Solum, Lawrence B., A Tournament of Virtue (September 7, 2004). U San Diego Legal Studies Research Paper No. 05-16. Available at SSRN: https://ssrn.com/abstract=588322 or http://dx.doi.org/10.2139/ssrn.588322