The United States Constitution provides that the President has the power to appoint federal judges with the advice and consent of the Senate. The Constitution does not specify the criteria that the President should use in selecting judicial nominees or that the Senate should employ in reviewing them. In recent years, the process of nominating and confirming candidates for the federal bench, and especially the Supreme Court, has become increasingly political and contentious. Professors Choi and Gulati criticize the apparently growing role ideology plays in choosing and evaluating judicial nominees and propose a bold alternative. Their “Tournament of Judges” purportedly consists of a series of ideologically neutral measures that identify which appellate judges “merit” elevation to the Supreme Court. By restricting the choice of a nominee to the winner of the tournament, Professors Choi and Gulati hope to eliminate the role of ideology and the attendant partisan battling from the selection of Supreme Court Justices. Moreover, they claim that their market-based system for judicial selection would improve the quality of nominees. The current federal appellate bench, which is itself a product of the very system that Professors Choi and Gulati lament, should perhaps be grateful for their providing the equivalent of an HR manual for boosting each judge's odds of promotion. But we are convinced that evaluating judicial performance is not as easy as they suppose and that relying exclusively on the Tournament to select a Supreme Court nominee would not advance the rule of law.
The authors discuss three concerns with using the Tournament of Judges as a basis for selecting a nominee to the Supreme Court. First, they question whether the metrics proposed by Professors Choi and Gulati appropriately measure the performance of circuit judges. Second, even if the Choi/Gulati metrics accurately capture judicial performance, the tournament itself may create incentives that distort judicial behavior and erode the quality of appellate judging. The criteria and the method by which a judge may improve her standing are readily known, and thus the authors are concerned that reducing judging to finite, measurable results would encourage judges to promote tournament criteria rather than adjudicate individual cases: judges may “judge to the test.” Third, even if the Choi/Gulati metric accurately measures the performance of circuit judges, winning the tournament may not predict success as a Supreme Court Justice.
32 Fla. St. U. L. Rev. 1055 (2005).
Bybee, Jay S., "Judging the Tournament" (2005). Scholarly Works. 355.