Desire for promotion is a significant motivating factor in many workplaces, and we expect it to operate in the Article III federal judiciary as well, though both the system of appointment and the age of appointment limit the opportunities for promotion. Promotion from within is common in many institutions and the rule in some, but in the case of the federal judiciary lateral entry is not only permitted but is the dominant route of appointment. In recent years, it is true, almost all Supreme Court Justices have been promoted from within, namely from court of appeals judgeships; only Justice Kagan is a lateral entrant. But the ratio of court of appeals judges to Supreme Court Justices is so high that the promotion, and only 11 percent of district judges have been promoted to a court of appeals or the Supreme Court. (For more data, see Tables 8.1 and 8.2 in the book.)
But these and other numbers overstate the decline because some judges appointed since 1960 may be promoted to the Supreme Court and some district judges appointed since then will certainly be promoted to courts of appeals.
We are interested in how the desire for promotion affects judicial behavior.1 That of course is a different question from whether promotion should be a feature of a judicial system. It has been argued both that a norm against promotion encourages judicial independence and that it diminishes incentives to excel.2 We do not take sides. As throughout this book, our analysis is positive rather than normative.
We study both court of appeals judges who have a realistic prospect of promotion to the Supreme Court and district judges who have a realistic prospect of promotion to a court of appeals. We ask whether any of these potential "auditioners" alter their behavior in order to improve their promotion prospects. This would be consistent with our realistic model of judges.