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61 S. Cal. L. Rev. 1555 (1987-1988)
Introduction: Judicial Selection and the Design of Clumsy Institutions

handle is hein.journals/scal61 and id is 1571 raw text is: ARTICLES INTRODUCTION: JUDICIAL SELECTION AND THE DESIGN OF CLUMSY INSTITUTIONS BY MICHAEL H. SHAPIRO* California voters turned their Chief Justice and two associate jus- tices out of office in 1986,1 and the U.S. Senate rejected Robert Bork's nomination to the Supreme Court in 1987.2 These adventures in judicial selection have at least briefly made vivid two problems: selecting judges and defining their functions. This Symposium addresses the connection between them. It tries, among other things, to map adjudicatory the- ory-and legal and political theory generally-onto methods of judicial selection by asking what different theories of adjudication3 might entail about who should select judges and how. I will give a brief * Dorothy W. Nelson Professor of Law, University of Southern California. B.A., 1959, M.A., 1962, University of California, Los Angeles; J.D., 1964, University of Chicago. My thanks to Professors Roy G. Spece, Jr. and Michael S. Moore for helpful discussions, and to Douglas Stephens for careful research assistance. 1. Chief Justice Rose Bird and Associate Justices Joseph R. Grodin and Cruz Reynoso lost their positions. Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, Part I, at 1, col. 2. For analyses of the election, see the set of articles The 1986 California Supreme Court Retention Election, USC LAW, Fall-Winter 1986, at 1. 2. Greenhouse, Bork's Nomination is Rejected, 58-52; Reagan 'Saddened,' N. Y. Times, Oct. 24, 1987, § I, at 1, col. 3. Robert Ginsburg, nominated after Bork's rejection, withdrew after admit- ting he had used marijuana while on the faculty at Harvard Law School. Roberts, Ginsburg With- draws Name As Supreme Court Nominee, Citing Marijuana 'Clamor', N. Y. Times, Nov. 8, 1987, § I, at 1, col. 4. I avoid comparing the jurisprudential interest of the two failed nominations. 3. Adjudicatory theory, theory of law, and political theory are terms I will not define or connect here. I simply note that different theories of what law is or how political systems ought to be constructed may, but need not, lead to different theories of what judges should do. See generally Gavison, The Implications of Jurisprudential Theories for Judicial Election, Selection and Accounta- bility, 61 S. CAL. L. REV. 1617 (1988) (discussing the connection between theories of law and judi- cial selection and accountability). Most of the discussions in this Symposium presuppose some form of republicanism, but of course questions about judicial selection may be raised concerning nondemocratic systems. 1555

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