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71 Judicature 317 (1987-1988)
Federal Judicial Recruitment and Selection Research: A Review Essay

handle is hein.journals/judica71 and id is 319 raw text is: Federal judicial recruitment and selection research: a review essay Unprecedented attention has been focused on federal judicial selection the last few years. The recent research raises important questions for analysts of public policymaking and suggests additional areas needing exploration. by Elliot E. Slotnick R esearch about the recruitment and selection of judges for both state and federal tribunals has historically occupied a central place in the concerns of judicial politics scholars, legal practitioners and non- professional analysts and observers of the American judiciary.' Underlying this con- cern is the premise stated by Peltason years ago that, the decision as to who will make the decisions affects what deci- sions will be made.2 While much has been written about judicial recruitment and selection, much allegedly social sci- entific scholarship has involved authors in a debate aimed at deciding which method of judicial selection is best and most suited to bringing about an often inadequately articulated result preferred by the writer. The focus of such writing often centers on the balance that a particular judicial selection mechanism accomplishes be- I would like to thank Scott Ebers for his superb work as my research assistant during the develop- ing of this essay; Stephen L. Washy for his work in editing an earlier version of this manuscript; and Linda Hamilton for her excellent work in the prep- aration of the manuscript. 1. For a fairly thorough and representative annotated bibliography of judical selection research see, Chinn and Berkson, LITERATURE ON JUDICIAL SELECTION (Chicago, American Judicature Society, 1980). 2. Peltason, FEDERAL COURTS IN THE POLITICAL PROCESS 29 (New York: Random House, 1955). 3. Flango and Ducat, What Difference Does Method of Judicial Selection Make?, 5 JUsT. SYs. J. 25 (1979). tween the dual values of accountability in American judges and independence and expertise in the judiciary. The scene in which the debate unfolds is set by the premise that courts occupy a unique position in the American scheme of things, for while ours is a government of laws and not men, thejudiciary, never- theless, clearly plays a major policymak- ing role in the American political system. Skeptical analysts who do not wish to enter this fray have, at times, questioned the relevance of research seeking the an- swer to the largely normative question of which judicial selection system is best? Flango and Ducat have asserted that: If... the question were reformulated to ask What difference do judicial selection pro- cedures make?, the answer could be sought through empirical research. If research re- veals that selection procedures are formali- ties with little impact on types of judges selected or upon the quality of judicial deci- sions, the energy now spent in debating the virtues of various selection procedures could be devoted to examining the merits of other reforms which might influence policy.3 The research conducted in recent years on judicial recruitment and selection questions amply demonstrates that neither point of view alluded to above is entirely warranted. For one, while re- searchers continue to address the ques- tion of the best method of selecting judges, the assumptions and goals that may motivate the analyst are often stated at the outset, and the fundamental issues are examined empirically. Secondly, while academic attention to judicial recruit- ment mechanisms is justified in part by the supposition that alternative selection systems favor the selection of judges with certain identifiable characteristics who, in turn, are expected to favor certain kinds of decisional outcomes once on the bench, this is patently not the only reason to engage in such research. Indeed, judicial selection processes would constitute an important research focus even if scholars were convinced that different decisional propensities did not flow from alternative selection proce- dures. Thus, important issues of demo- cratic theory would remain, including questions relating to what political forces exercised control over recruitment pro- cesses and could structure their rewards. Further, to the extent that the concepts of representation, access and participation remain important constructs in demo- cratic theory, and to the degree that elite recruitment, campaigns and elections, executive and legislative behavior, etc. remain concerns of general interest to students of politics, compelling reasons exist for studying judicial recruitment and selection. In this essay I shall attempt to review the contributions made between 1983 and 1986 to the state of our knowledge about federal judicial recruitment and selec-

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