Judicial Merit Selection: Beliefs about Fairness and the Undermining of Gender Diversity on the Bench

Abstract

Much attention is paid to how mechanisms for selecting political officials shape which types of officials hold positions of power, but selection procedures do not always produce the desired outcomes. In the context of the judiciary, many expected “merit” selection procedures to facilitate the selection of women justices to the bench, an expectation that has not been realized. Applying theories of procedural fairness to judicial selection procedures, I argue that observers’ beliefs that merit selection procedures are more “fair” (relative to unilateral selection procedures) makes observers more accepting of all-male benches. Survey experimental evidence demonstrates that respondents do perceive merit selection procedures as more fair than gubernatorial selection procedures, a priori. In turn, respondents are less critical of all-male courts when judges are selected through a merit selection procedure. These findings contribute to our understanding of the ways in which (1) selection institutions shape prospects for gender diversity, (2) institutional design can have unintended consequences, and (3) procedural fairness can obscure accountabilituy for suboptimal outcomes.

Since you put it that way… Gender norms and interruptions at Supreme Court oral arguments

“…While it is pivotal to explore diversity amongst legal actors, it is important to recall exchanges between attorneys and jurists are shaped by institutional context. Ample research notes institutional context shapes everything from diversity (Arrington 2018(Arrington , 2020 to the way gender norms operate (Gleason 2023). This is well illustrated in the Court's response to the publication of Jacobi and Schweers' (2017) study noting female justices are interrupted more than their male counterparts.…”

The Politics of Interim Judicial Appointments

“…This covers the gubernatorial administrations of Zell Miller to Nathan Deal, and includes 4,835 applications for interim appointments to both trial and appellate courts. These data 5 Recent findings suggest the public is less critical of governors who fail to make diverse selections to a state's courts if conducted under a merit selection scheme (Arrington 2021). This implies that governors in the commission-based selection process may, in fact, have more latitude when tapping their personal preferences since the public perceives procedural fairness.…”

Constitutional Reform and the Gender Diversification of Peak Courts

“…The primary mechanism through which this works involves incentives for "credit claiming" (Valdini and Shortell 2016). Increasing the number of actors in an appointment process makes it more difficult for any one actor to claim credit for a successful process of diversifying the bench and also less likely that any one actor will take the blame for a failure (Arrington 2020). In short, increasing the number of actors creates a coordination problem over accountability for diversity outcomes.…”

“…In 2007, the Venice Commission issued a report advocating for appointment processes that weaken the control of the executive by making use of diverse appointments commissions (Venice Commission 2007). Scholars have questioned the effect of merit commissions on diversity (e.g., Arrington 2020; Goelzhauser 2016; 2018), but experts continue to look for alternatives to centralized models. For example, Kowal (2016, 21) writes, “To have any claim to legitimacy, a twenty-first-century method of judicial selection must be more effective in delivering a judiciary that reflects our diverse communities.…”