“Selecting Selection Systems”
Lee Epstein, Jack Knight, and Olga Shvetsova

In Judicial Independence at the Crossroads: An Interdisciplinary Approach, ed. S.B. Burbank and Barry Friedman. American Academy of Political and Social Science/Sage Publications (2002)
Click here for the chapter
Click here for the data we used in the chapter

Introduction

Why do societies choose particular institutions of judicial selection and retention? Why do they formally alter those choices? We attempt to address these questions, first, by assessing what we can only call the standard story of judicial selection systems. On this explanation, the initial choice of institutions (and alterations in that choice) comes about through changes in the tide of history, that is, of societies "responding to popular ideas at different historical periods" (Glick and Vines 1973, 40).

Finding this story conceptually thin and empirically wanting, we turn to a different explanation. On this account, the creation of and changes in the institutions used to select and retain justices serving on (constitutional) courts of last resort must be analyzed as a bargaining process among relevant political actors, with their decisions reflecting their relative influence, preferences, and beliefs at the moment when the new institution is introduced-along with (and critically so) their level of uncertainty about future political circumstances. Among the interesting results our account yields is the following: As uncertainty increases, the probability of adopting (or changing to) institutions that lower the opportunity costs of justices (the political and other costs justices may incur when they act sincerely) also increases.