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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor

ON TOURNAMENTS FOR APPOINTING GREAT JUSTICES TO THE U.S. SUPREME COURT
Published in 2005. Southern California Law Review 78: 157-178 (2005).

WERL
(The acronym for Washington University's weekly Workshop on Empirical Research in the Law)

In ``An Empirical Ranking of Judicial Performance" (S. Cal. L. Rev. (2004)), Professors Steven Choi and Mitu Gulati are ambitious: They seek to quantify great legal minds. This interesting endeavor has both descriptive and normative components: Choi and Gulati hope not only to offer objective measures of what makes a judge great but also to impact the choices that presidents and senators make when appointing individuals to the U.S. Supreme Court. Their procedures---which entail running the names of judges through various judicial tournaments---lead the authors to advocate a handful of well-known federal appellate judges for nomination to the high court.

Although Professors Choi and Gulati have unequivocally started a useful dialogue, we argue that their approach is so fraught with faulty assumptions and imperfect measures that to replace the current nomination procedures with the authors' tournament could lead to a series of harms that, in our view, may very well be serious than those we face under the existing system. In this article, we describe the drawbacks as we see them, and note that while the authors could readily fix some of the defects, others are inherent to the tournament and thus could not be remedied without rejecting the approach altogether.

Click here for the article (.pdf).
Click here for a zipped folder containing the data we used in the article.
Click on the titles below for the websites of related projects:
The Changing Dynamics of Senate Voting on Supreme Court Nominees
The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court
Advice and Consent: The Politics of Judicial Appointments