Be Careful What You Wish For: The Problems with Using Empirical Rankings to Select Supreme Court Justices

Posted: 26 Aug 2015

See all articles by William P. Marshall

William P. Marshall

University of North Carolina School of Law

Date Written: 2004

Abstract

This Comment is a response to Professors Stephen Choi and G. Mitu Gulati’s “Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance,” an article that presents an imaginative and well-timed challenge to the current judicial nominations culture, which insists in maintaining that nominees are selected for their excellence when they are actually chosen for their ideology. Attempting, as much as possible, to eliminate criteria that might reflect ideological bias, the authors examine factors that are readily quantifiable rather than dependent on subjective judgment. Thus, they look at a judge's productivity measured by opinion output; opinion quality measured by favorable citation; and judicial independence measured by the number of dissenting and concurring opinions combined with opinions written in opposition to a judge of the same political party.

In Part I, I discuss some of the problems that I have with the specifics of the ranking system that Choi and Gulati employ to evaluate judicial performance. My purpose here is not to raise every technical objection one might have to their methodology. Choi and Gulati already recognize that their system may need tweaking, and I am sure they will continue to make adjustments as their thinking evolves. My intention in Part I, rather, is to highlight some elements of the authors' system that may be counterproductive to their goals or that might otherwise lead to unintended and unfortunate results.

Part II presents a harder critique. It begins with a nod to the authors' suggestion that a credible ratings system could become a factor in the Supreme Court nomination and confirmation processes. It questions, however, whether the insertion of such a ranking system would be a beneficial development. Part II.A contends that, at best, an ostensibly objective ranking system would most likely become a tool for politicians to accomplish ideological goals rather than, as the authors contend, a device to uncover hidden ideological agendas. Part II.B, in turn, argues that, if taken seriously, the ratings system may actually reduce the caliber of judicial nominees by imposing a model of judicial excellence for appointees that may not reflect the qualities needed at the Supreme Court level. Part III then offers a brief conclusion.

Suggested Citation

Marshall, William P., Be Careful What You Wish For: The Problems with Using Empirical Rankings to Select Supreme Court Justices (2004). 78 Southern California Law Review 119 (2004), Available at SSRN: https://ssrn.com/abstract=2649974

William P. Marshall (Contact Author)

University of North Carolina School of Law ( email )

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