Preparing for the Future: A Model of Judicial Selection

• In Event: Poster Session: Formal Political Theory; Political Methodology & Canadian Politics
  In Poster Session: Poster Session: Formal Political Theory: Formal Models of Political Processes

Abstract

Current literature on judicial selection suggests that the person(s) in charge of selecting judges will choose someone who will make decisions in line with the selector's ideology. Theses models take the form of a principal agent problem, with the selector choosing a judge with his/her ideology. However, this solution is predicated on the assumption that judges will make decisions based solely on their own ideology. If this assumption fails, selecting a judge at the selector’s ideal point is not always the optimal solution. This assumption ignores one major source of moral hazard. A vast literature suggests that judges make decisions strategically with respect to the ideology of the person who is in charge of making decisions that are pertinent to their careers. Thus, the distinction between selection and retention (or promotion) becomes important.

Previous selection literature assumes that selectors are interested in case outcomes, and will appoint judges who make decisions they like. This is only best practice in systems in which the selector retains control over the judge after their appointment. Given literature suggesting that judges make decisions that will help advance their careers, there are limited instances in which this is the case. Indeed, this situation only occurs when the same person makes both selection and either retention or promotion decisions, since the original selector will be able to remove judges who do not make decisions that they prefer. However, when the selector does not also make retention or future career based decisions, then judges will be incentivized to make decisions that will be preferential to whoever will make these decisions.

A better model of selection allows for judges to be motivated by both policy and career considerations. Thus, judges will make decisions based not only on their preferred policy outcome, but also on the likelihood that a decision will influence their future career goals. With this addition, selectors are able to predict the types of cases that judges will make based on both their policy preferences and their career ambitions. This allows the selector to leverage both policy preferences and career goals when selecting judges.

In this paper, I create a formal model of judicial selection. The model accounts for the institutional design of the judiciary/government, allows judges to make decisions that are both policy and career motivated, and allows the selector to compensate for the ways in which the judge's decisions will deviate from their own ideology as well as the ideology of the selector.

Author

• Alicia Uribe-McGuire, University of Illinois at Urbana-Champaign