 FORUM |
| JURIST >> OPINION >> Forum >> Judicial Confirmation Symposium >> A Little Jousting ... |
—————————————————————————————
THE JUDICIAL CONFIRMATIONS PROCESS
SELECTING FEDERAL JUDGES IN THE TWENTY-FIRST CENTURY
A JURIST ONLINE SYMPOSIUM
A LITTLE JOUSTING OVER A TOURNAMENT OF JUDGES
CLICK FOR PRINTER FRIENDLY VERSION
Rethinking Promotion to the Supreme Court Think about how promotions take place at any corporation, law firm, investment bank, or even academic institution. The performance of the different candidates is evaluated by the organization’s experts using a set of criteria. In evaluating the candidates’ performances, the committee looks to do at least two things. First, the obvious, which is to find the best person for the job. And, second, to set up incentives. If those at the lower levels know that those who perform the best will be rewarded with promotions, they will work harder (especially if those promotions involve fame and fortune). So, at a fancy New York law firm, the promotion committee might look at the number of hours billed by the associates, the quality of their legal work, and the amount of new business they have brought in. Each of these criteria has an element of reward for a job well done in the past and also an element of prediction about potential in the new job of partner.
Now, take the U.S. Supreme Court. It is likely that there will be at least two openings on the Court in the near future-there is speculation that both Chief Justice Rehnquist and Justice O'Connor wish to retire soon-and the topic of who will fill those slots is the subject of frequent and heated debate. Why is promotion to the Supreme Court not structured more like the type of promotion systems that the rest of us face in our everyday jobs? Why not a tournament for judges where the winner gets promoted-or at least a tournament to determine the pool of candidates who will be considered for promotion?
The norm today appears to be that a candidate for the Supreme Court has to first serve time at the circuit court level. From the perspective of setting up an effective promotion system, this norm makes sense. After all, judges on the circuit courts do much the same kind of task as Supreme Court justices (they decide cases and write opinions explaining their decisions-the difference being that the Supreme Court decides fewer and more important cases). Further, the knowledge that the best performers will be promoted can help provide incentive for all the lower court judges to exert high levels of effort.
We propose ranking all circuit court judges periodically based on objective criteria-with the winner of such a tournament becoming the presumptive nominee for the next Supreme Court vacancy. The question then is: What criteria should be applied to evaluate the performance of the lower court judges? Since what judges do is to decide cases and write opinions explaining their decisions, the criteria should presumably focus on evaluating performance on these tasks. One way to measure the quality of a judge's opinion might be to look at the level of use that judge's opinions have received (in the form of citations in other judicial opinions) as compared to those of her judicial colleagues. Other measures of performance exist as well. One could look at the speed at which the judge decides cases, the fraction of cases in which she publishes explanations for her decisions, the rate at which her cases are reversed by the Supreme Court and so on.
In addition, if there are other criteria, such as judicial independence, that are not measured by citation and publication rates, we can devise additional measures. For example, if society cares deeply about judicial independence, we can look at the number of times a judge was willing to dissent (or better, dissent against those with the same political leanings). Some of these measures are better than others and there are undoubtedly other measures that could be devised. As well, a mixed weighting of different objective criteria may help combat perverse incentives on the part of judges to focus overly on maximizing a particular criterion. The point is that, just as with a law firm or corporation, there exist objective criteria that can be used to make promotion decisions.
To restate the point in informational terms, the information available to run a tournament in the judicial context is a lot better than what is generally available to promotion committees in the private sector. Judges comprise a large group of identically situated candidates performing similar jobs with similar sets of resources over long periods of time. Better still, much of the data about their performances-publication numbers, citation rates, numbers of dissents and concurrences, reversal rates-are publicly available and easy to collect. Yet, the readily available information is for the most part ignored in favor of information of how the candidates stack up in terms of political litmus tests on matters such as abortion, the death penalty, affirmative action, gun control, federalism, and separation of church and state. The latter constitutes information as well. But is it so important that the other information-basic questions such as how hard a judge has worked or what
the quality of their opinions is or even how politically independent they are-should not factor in at all?
To reiterate our primary objection to the current system of promotion to the Supreme Court, it seems altogether devoid of any attempt to objectively evaluate performance on the lower courts. The President, the Senate, and the various interest groups seem to feel free to pick their candidates based on litmus tests and then announce that they are "highly qualified" and meritorious. Indeed, the irony is that often the indicator of being "highly qualified" is that the person has been a judge on some prestigious circuit court for a number of years. If the explicit claim is that being a circuit judge is an indication of merit, why is there no investigation of how that person did relative to others on that circuit or other circuits? It simply cannot be the case that all circuit judges are equally good. It used to be that there was some consideration of the relative performances of these candidates via the ABA's evaluative processes. But the ABA's evaluations have been increasingly
marginalized on the grounds that they are subjective and politically biased (the irony being that taking away even this minimal evaluation has made the system even more partisan). If subjectivity and bias are the problems, surely the solution is not to move away from standards altogether.
Politics should and do play a role in the selection of Supreme Court justices. Our objective tournament system makes more transparent political considerations while giving due weight to merit-based criteria. Despite the presence of objective rankings, some may nonetheless attempt to make a separate merit-based claim to disguise politically motivated objections (or support) for a particular nominee. To uncover such ruses, we propose a ban on all merit-based arguments outside of the objective rankings. Those who would support a different candidate other than the judge who wins our tournament must do so based on purely political arguments. Political arguments are allowable. The use of objective criteria works to flush the more political side of the nomination process into the open.
Mitu Gulati is a Professor of Law at Georgetown University Law Center.
Judging the Tournament "Tournament" has a quaint, medieval sound. It conjures up images of plumed knights battling in the lists, before a crowd of aristocratic connoisseurs of combat and their pale-faced ladies. Its lineal descendant is the modern sporting event, but it bears some resemblance to courtroom contests, adversaries contending before a black-robed judge and twelve good and lawful jurors in the box. Trial by jury was, after all, the common law substitute for trial by ordeal and co-existed for some time with trial by combat.
Choi and Gulati propose a "Tournament of Judges" in which the reward is a seat on the Supreme Court of the United States. They take as their starting point a supposed norm that a candidate-justice first serve on one of the United States Courts of Appeals. Such a barrier to entry would exclude other sources of recruitment that have in the past provided many notable justices: state supreme courts, successful practice, elective office, even law school teaching. But the "norm" of federal appellate court service is crucial to the Choi-Gulati scheme because the tournament rules they propose depend largely on the perceived quality of judicial opinions, a product no other candidate pool except state appellate court judges can supply.
Who judges the judges in the Choi-Gulati tournament? For the most part, other appellate judges. Only authors of judicial opinions can cite prior opinions; only colleagues on the same court can decide which opinions merit publication; only colleagues who refuse to join in draft opinions can create the necessary conditions for dissents; and only higher appellate court judges can reverse decisions expressed in lower court opinions.
The central problem with Choi and Gulati's proposal, however, is not the implicit limit on the candidate pool, but the proposed rules of engagement, which depend on the assumption that what judges do-and what therefore we want them to do best-is produce judicial opinions. The judge who writes the best opinions, tested by some supposedly objective measure, wins. But in fact, it is the decision rather than the opinion that is the essential judicial function. What is decided is more important than what is said in explanation thereof. Subsequent judicial opinions may cite a prior opinion, may follow rather than reverse it, but if it explains, however elegantly, the wrong result, its author is not worthy of promotion-indeed, the opposite is true. Since the defining judicial product is the decision, it follows that the tournament rules should favor the best decision maker rather than the best opinion writer.
If judges are the primary consumers of judicial opinions, then who are the consumers of judicial decisions? First and foremost, they are the parties to the case; secondarily, anybody who is affected by the precedent the case establishes. How, then, can consumer preferences be registered in a Tournament of Judges? One possibility, with plenty of real-world basis, would be judicial election. The majority of appellate judges in the United States, if one includes state as well as federal judges, are presently elected. The tournament would then be judged, not by the judicial aristocracy, but by the "groundlings" that actually bear the burden of judicial decisions.
If popular vote is too crude an "objective measure" for choosing a winner, one could use a time-tested method for admitting public choice into the judicial decisional process. For most of its long history, the common law was expounded by three courts with essentially concurrent jurisdiction. Over hundreds of years, these courts competed with one another for business; that is, the judges actually offered procedural improvements and in some cases even substantive rules that made their courts more attractive to litigants. The explanation, one readily understandable to economists, is that the judges' compensation, a prize they value more than promotion, was tied to their product. Until modern times the common law judge's salary was only a small fraction of total compensation, most of which came from gratuities and fees. The unsurprising reality that judges could be-indeed, had long been-"incentivized" by paying them by the case led one befuddled lawyer to propose twenty
years ago that the United States Constitution be amended to provide for three supreme courts with judicial incomes determined by what the market would bear. The popularity of arbitration and other forms of alternative dispute resolution suggest that the paying customers might welcome an invitation to the tournament.
The problem with the latter proposal is that it works best when the judicial function is simply the resolution of individual disputes, but the Supreme Court of the United States is a unique judicial institution whose function has long ceased to be the decision of individual cases and become instead the making of social policy on a grand scale. Policy-making can indeed be learned and demonstrated on appellate courts, but it can also be found elsewhere. The problem remains the hard one of picking the best decision maker. Choi and Gulati's turn to the market is an understandable attempt to avoid the issue by letting a fictional "market" do the job for us, but we cannot afford to surrender the choice of our judicial governors to impersonal market forces. The real tourney-prize, after all, is not the advancement of some individual, but the life, liberty, and property of us all.
Information and the Selection of Judges In their piece, Choi and Gulati view the nomination and confirmation of Supreme Court justices as driven largely by politics. Although they do not oppose politics playing some role in the selection of judges, they object to politicians who disguise arguments about a judge's political views as contentions about a judge's non-political, more merit-based qualifications. To solve this problem, Choi and Gulati present a proposal based on purportedly objective rankings of circuit court judges. I focus on some limitations and possible undesirable consequences of such a ranking system.
A ranking based solely on objective measures is necessarily imperfect. Choi and Gulati do not specify which criteria should be included in their proposed ranking, nor, as important, the weight that each criteria should receive in calculating the ranking. Nevertheless, they mention a number of possible criteria, including the number of opinions a judge publishes and the number of citations by other judges to those opinions. The fact that a U.S. Court of Appeals generally decides cases in panels of three judges, however, diminishes the usefulness of any objective measure of the quality of a particular judge. For example, deciding which panel member will write the majority opinion, as well as whether an opinion should be written or published at all, are group decisions. Thus, the number of opinions a judge publishes and the resulting number of citations to a judge's opinions are partly determined by the publication preferences of other judges in the circuit.
In addition, intercircuit comparisons of judges will be less meaningful than comparisons within a circuit. Each U.S. Court of Appeals has its own criteria for the publication of opinions, and these criteria may affect the number of decisions judges in that circuit publish. Also, intercircuit differences in the number and types of cases filed can affect the number of opinions a judge publishes and the number of citations to those opinions.
As Choi and Gulati note, the measures of merit that they propose are based on information that is already available to those in the judicial selection process. The fact that this information does not currently play a significant role in the debate over the confirmation of judges suggests that rankings based on such information might not be given great weight by those people involved in the selection process.
However, even if the selection process does place significant weight upon the rankings, there may be undesirable consequences. For example, it may encourage a President to nominate politically more extreme candidates who happen to have high merit rankings. This could lead to an even more protracted confirmation process, as well as a more politically extreme or splintered Supreme Court.
A ranking system might also not create positive incentives for judges in the way Choi and Gulati hope. Few judges have a realistic chance of being appointed to the Supreme Court, so for many judges the chance of nomination is so remote that a ranking system is unlikely to affect their behavior. In addition, it could encourage undesirable behavior by those judges who are motivated by a possible promotion to the Supreme Court. For example, a ranking system that places a premium on a low reversal rate gives judges an incentive to make decisions that the current majority of the Supreme Court will agree with, rather than what the judges think are the correct decision. Similarly, a ranking system that values the number of opinions published or the number of citations to those opinions might encourage judges to spend their time writing opinions for legally insignificant cases or to engage in unusual reasoning to increase the number of citations to their opinions.
Finally, it is questionable whether objective, quantitative measures alone can be accurate measures of merit. The extent to which a candidate possesses many of the essential characteristics of an excellent appellate judge-such as a strong legal mind, an appropriate temperament, integrity, and the ability to foster collegiality on a court-might never be validly measured by objective and quantifiable criteria. For these judicial characteristics, a more qualitative evaluation is necessary, such as the ABA's approach in evaluating judicial nominees. Adopting a more modest version of the Choi-Gulati proposal, perhaps by simply publicizing judges' rankings and their scores in criteria that underlie the ranking, could provide useful information to supplement that given by the ABA. In addition, the resulting debate over even flawed measures of merit might encourage the development of better measures of judicial quality in the future.
April 15, 2004
Professor Stephen Choi
Boalt Hall School of Law, University of California, Berkeley
Professor Mitu Gulati
Georgetown University Law Center
Stephen Choi is the Roger J. Traynor Professor of Law at Boalt Hall School of Law, University of California, Berkeley.
Professor John V. Orth
University of North Carolina at Chapel Hill
"Take thou the jewels of this dead innocence,
And make them, an thou wilt, a tourney-prize."
Alfred, Lord Tennyson
John V. Orth is the William Rand Kenan, Jr. Professor of Law at the University of North Carolina at Chapel Hill.
Professor Ahmed E. Taha
Wake Forest University School of Law
Ahmed E. Taha is an Assistant Professor of Law at Wake Forest University School of Law.
