The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the "most meritorious" and yet this is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates' likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side claims that it is proposing certain candidates based on merit, while the other claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past this impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians' claims of merit. Being able to test these claims helps make transparent the occasions in which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a "merit" standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology. This Article runs such a tournament using data on opinions authored by active federal circuit court judges from one common time period: the beginning of 1998 to the end of 2000. The focus on a common time period helps put judges in the tournament on a level playing field. We then generate a series of measures of merit focusing on (a) productivity, (b) opinion quality, and (c) judicial independence. While not perfect, our measures interject a greater focus of merit in the current nomination process (thereby revealing previously nontransparent motives based on ideology). With our data, we are able to test the claims of merit that the next president will inevitably make when he announces one of his favorite circuit court judges as the nominee for the Supreme Court.
Mitu Gulati & Stephen J. Choi, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 Southern California Law Review 23-118 (2004)