How to rig the federal courts

Georgetown Law Journal

Volumn 99, Issue 3, 2011, Pages 779-835

  Law, David S ^a  

^a WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79956114542     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (408)

1. U.S. CONST. art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]").
2. In some cases, for many years indeed. See A.G. Sulzberger, At 103, Oldest Federal Judge Has One Caveat: No Lengthy Trials, N.Y. TIMES, Sept. 17, 2010, at A1 (noting that, at the age of 103, U.S. District Court Judge Wesley E. Brown still remains months shy of becoming "the oldest practicing federal judge in the history of the United States").
3. See, e.g., Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J. POL. SCI. 231, 233-38 (2007);
4. Andrew D. Martin et al., The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275, 1276-1300 (2005) (explaining why, from a theoretical perspective, the "median Justice" holds such sway over policy outcomes, and discussing various methods for identifying the median Justice);
5. David W. Rohde & Kenneth A. Shepsle, Advising and Consenting in the 60-Vote Senate: Strategic Appointments to the Supreme Court, 69 J. POL. 664, 666-72 (2007) (modeling the heightened conflict that surrounds Senate confirmation of pivotal Justices);
6. Peter H. Lemieux & Charles H. Stewart, III, A Theory of Supreme Court Nominations 3, 18-21 (Jan. 1991) (unpublished manuscript), http://hdl.handle. net/1721.1/18151 (last visited Feb. 11, 2011) (explaining why, in most cases, appointment of a single Justice will have "only a marginal influence over policies in the near term").
7. Grover Cleveland and Richard Nixon are the only presidents since 1869 to have fallen short of this feat. See DEBORAH J. BARROW ET AL., THE FEDERAL JUDICIARY AND INSTITUTIONAL CHANGE 23 (1996) (noting that Cleveland, a Democrat, failed "in an extraordinarily Republican-dominated era," and that Nixon "came within a percentage point" notwithstanding the Watergate debacle);
8. Robert A. Carp et al., Right On: The Decision-Making Behavior of George W. Bush's Judicial Appointees, 92 JUDICATURE 312, 315-16 (2009) (describing the impact of Presidents Clinton and George W. Bush on the overall mix of appointees on the federal bench, and noting that 51% of all federal judges had been appointed by Democratic presidents by the time Clinton left office); infra text accompanying notes 33-36 (describing the extent of the partisan transformations of the Federal Judiciary that occurred under Presidents Clinton and George W. Bush).
9. On only three occasions over the course of the entire twentieth century did either party possess a nominally filibuster-proof majority in the Senate. On all three occasions, it was the Democratic Party that enjoyed the requisite number of votes. David S. Law, Appointing Federal Judges: The President, the Senate, and the Prisoner's Dilemma, 26 CARDOZO L. REV. 479, 512 & n.163 (2005). Moreover, even on those rare occasions, the power of the Democratic majority in the Senate was never as fearsome in practice as the numbers alone would have suggested, resting as it did upon the support of a number of conservative southerners
10. See id. at 512 & n.163.
11. See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 408-42 (2009) (discussing the origins and scope of the conflict that erupted immediately between the newly elected Jeffersonian Republicans and the holdover Federalist Judiciary).
12. See Gary C. Jacobson, The 2008 Presidential and Congressional Elections: Anti-Bush Referendum and Prospects for the Democratic Majority, 124 POL. SCI. Q. 1, 1-6 (2009) (characterizing the 2008 federal elections as a referendum on, and resounding rejection of, the outgoing George W. Bush Administration, and describing the magnitude of the resulting Democratic supermajority).
13. See Law, supra note 5, at 493-96 (discussing the recurring political conflict over the scope of senatorial courtesy and the "blue slip" practice, under which individual senators supposedly enjoy the power to thwart consideration of judicial nominees from their home states).
14. See, e.g., Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769, 824-54 (2006) (proposing eighteen-year term limits for Supreme Court Justices);
15. Roger C. Cramton, Reforming the Supreme Court, 95 CALIF. L. REV. 1313,1323-34 (2007) (arguing that service on the Supreme Court should be limited, either on a de facto basisby statutory reform, or by outright constitutional amendment);
16. Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 997-1006 (2007) (reviewing recent proposals to amend the Senate's voting rules with respect to judicial nominations and to introduce mandatory retirement for members of the Supreme Court).
17. See, e.g., KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY 268 (2007) (emphasizing the breadth of opposition to Franklin Roosevelt's much maligned Court-packing plan);
18. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971, 987, 1028-31, 1037-46 (2000) (discussing how opposition to Roosevelt's Court-packing plan extended even to those who opposed the Court's obstruction of the New Deal).
19. See Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CALIF. L. REV. 299 (2004) (proposing that Supreme Court vacancies be filled on the basis of an objectively scored competition among circuit court judges).
20. See I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD. 289, 294-97 (1984) (arguing that the denial of precedential effect to closely divided appellate decisions would reduce the probability of legal error).
21. See Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99 COLUM. L. REV. 215 (1999) (proposing that federal appeals court panels be required to include appointees of both parties).
22. See infra section IV.B.2 (noting that the most prominent and obvious options for delegating the selection of appeals court judges to the Judiciary itself would tend to favor conservatives over liberals).
23. See infra section V.A (proposing mechanisms for the selection and supervision of law clerks that would have an inherently liberal bias).
24. See infra note 214 (describing ways in which the mechanism of a clerkship merit commission could be modified to advance the goal of entrenching conservative rather than liberal hegemony).
25. See U.S. CONST. art. III, § 1 (creating "one supreme Court" and "such inferior Courts as the Congress may from time to time ⋯ establish");
26. id. § 2, cl. 2 (conferring upon the Supreme Court appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make").
27. See WOOD, supra note 6, at 408-09.
28. See Lewis A. Kornhauser, Is Judicial Independence a Useful Concept?, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 45, 49 (Stephen B. Burbank & Barry Friedman eds., 2002) ("Political scientists and legal academics ⋯ generally consider the federal judiciary in the United States as the paradigmatic case of judicial independence.").
29. See infra note 28.
30. Peter H. Russell, Toward a General Theory of Judicial Independence, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 1, 13 (Peter H. Russell & David M. O'Brien eds., 2001).
31. See Inside the Federal Courts, FED. JUDICIAL CTR., http://www.fjc.gov/ federal/courts.nsf (follow "How the Federal Courts Are Organized" hyperlink; then follow "Federal judges and how they get appointed" hyperlink) (last visited Feb. 11, 2011).
32. See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 301-02, 308-09 (1803) (upholding the repeal of the Judiciary Act of 1801 without explicitly addressing the constitutional question of whether Congress could eliminate existing Article III judgeships);
33. CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA'S JUDICIAL SYSTEM 81-85 (2008) (discussing the abolition of the Commerce Court and the reappointment of its members to the circuit courts);
34. Cramton, supra note 9, at 1329-30 (discussing the three occasions in American history, all in the 1800s, on which Congress sought to abolish Article III judgeships);
35. Jackson, supra note 9, at 991-92 (noting the controversy surrounding congressional abolition of judgeships).
36. See sources cited supra note 10.
37. See John V. Orth, How Many Judges Does It Take To Make a Supreme Court?, 19 CONST. COMMENT. 681, 684-85 (2002) (discussing the reduction in the size of the Court, and noting also how, along similar lines, the Judiciary Act of 1801 eliminated a seat from the Supreme Court in an effort to deny Jefferson the opportunity to make an appointment).
38. See An Act Concerning the District of Columbia (District of Columbia Organic Act of 1801), ch. 15, § 11, 2 Stat. 103, 107 (1801) (authorizing the President to appoint an unspecified number of justices of the peace for the District of Columbia);
39. WOOD, supra note 6, at 419-20 (describing the circumstances surrounding the passage of the Judiciary Act of 1801 and the resulting appointment by the Federalists of the "midnight judges").
40. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154-80 (1803) (holding that the Court lacked jurisdiction to issue a writ of mandamus directing Jefferson's Secretary of State, James Madison, to deliver a judicial commission to William Marbury, who had been appointed a justice of the peace for the District of Columbia in the last hours of the Adams Administration);
41. Stuart, 5 U.S. (1 Cranch) at 301-02, 308-09 (upholding the Jeffersonian repeal of the Federalists' "Midnight Judges Act" and, with it, the elimination of sixteen circuit judgeships);
42. WOOD, supra note 6, at 420-42 (discussing the determination of the Republicans to bring the Federalist-dominated Judiciary to heel and the background to the Court's decisions in Marbury and Stuart).
43. See U.S. CONST. art. II, § 4 ("[A]ll civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.").
44. Occasional efforts to impeach individual federal judges on account of their political views have fallen short. See LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 7, 31-32 (2005) (describing the failed efforts to impeach Justices Samuel Chase and William O. Douglas, among others, on account of their political views);
45. MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 103 (2d ed. 2000) (noting then-House Majority Leader Gerald Ford's widely quoted but ultimately unsuccessful argument in support of the effort to impeach Justice Douglas that an "impeachable offense" is "whatever a majority of the House [considers it] to be at a given moment in history" (brackets in original));
46. GEYH, supra note 23, at 125, 131-42 (describing the effort to impeach Justice Chase, and arguing that a strategy of impeaching judges on account of the substantive content of their decisions has "become decreasingly viable over time").
47. See U.S. CONST. art. III, § 1 (stipulating that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour");
48. James E. Pfander, Removing Federal Judges, 74 U. CHI. L. REV. 1227, 1246-49 (2007) (arguing that Article III's guarantee of judicial tenure "rules out any removal proceedings (including intrabranch proceedings) not specified in the Constitution");
49. supra note 23 and accompanying text.
50. See supra note 22 and accompanying text.
51. See David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 TEX. L. REV. 1545, 1576 & n.187 (2009) (contrasting Japan's long history of one-party rule with the historically competitive nature of American elections);
52. Beatriz Magaloni, Enforcing the Autocratic Political Order and the Role of Courts: The Case of Mexico, in RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES 180, 182-83, 194-97 (Tom Ginsburg & Tamir Moustafa eds., 2008) (summarizing Mexico's long history of one-party rule);
53. The Vote that Changed Japan, ECONOMIST, Sept. 5, 2009, at 13, 13 (discussing the significance of Japan's long-ruling Liberal Democratic Party ceasing, for only the first time in half a century, to be the largest party in the Diet).
54. See supra note 4 and accompanying text.
55. See Carp et al., supra note 4, at 315.
56. Id. (noting that, by the time that Clinton left office, 51% of federal judges were Democratic appointees).
57. See Sara Schiavoni, Partisan Makeup of the Bench, 92 JUDICATURE 282, 282 (2009).
58. See, e.g., ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) (arguing that judicial review does little more than impose a lagging average of electoral politics upon a current majority);
59. Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795, 806-07 (1975) (arguing that the Supreme Court tends to invalidate laws during the "lag period" after a realigning election that leaves it temporarily out of sync with the elected branches);
60. supra note 4 and accompanying text (describing the longstanding tug-of-war between the two parties over the composition of the Federal Judiciary).
61. See Frank Tamulonis III, Comment, Splitting the Ninth Circuit: An Administrative Necessity or Environmental Gerrymandering?, 112 PENN. ST. L. REV. 859, 861-62 (2008).
62. See id. at 877-78 (discussing the political motivations behind proposals to split the circuit, and noting that the belief that judges from the circuit's southern states are more pro-environment than those from its northwestern states appears to be mistaken).
63. Some states-for example, Idaho and Hawaii-predictably elect senators of a particular ideological persuasion. Senators from reliably liberal (or conservative) states can be expected to resist the appointment of conservative (or liberal) judges from their home states. If they are successful in doing so, then the circuits that include those states will tend to display a certain ideological leaning. There is no guarantee, however, that they will succeed. A senator's ability to prevent the appointment of home-state judges of whom he or she disapproves is a function of senatorial courtesy practices that have become hotly contested and have vacillated in scope in recent years. See Law, supra note 5, at 493-96.
64. Terry M. Moe, The Politics of Bureaucratic Structure, in CAN THE GOVERNMENT GOVERN? 267, 281 (John E. Chubb & Paul E. Peterson eds., 1989);
65. Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, LAW & CONTEMP. PROBS., Spring 1994, at 1, 4-5 (1994).
66. See, e.g., TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 24-33 (2003) (arguing that governments at risk of losing power face an incentive to empower judicial institutions as a form of "political insurance" against potential losses under an opposition government);
67. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 43-44 (2004) (explaining the adoption of judicial review by independent courts as a form of "hegemonic preservation" by governing elites facing a future loss of political power);
68. Lee Epstein & Jack Knight, Constitutional Borrowing and Nonborrowing, 1 INT'L J. CONST. L. 196, 200, 210-12 (2003) (arguing that "uncertainty about future political prospects" leads "dominant political actors to prefer selection and retention mechanisms that many scholars associate with judicial independence");
69. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 877-79 (1975) (arguing that the creation of politically unresponsive courts benefits legislators because the prospect of judicial enforcement of the original legislative bargain renders interest groups willing to pay higher up-front rents for legislation).
70. See generally David S. Law, Constitutions, in THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH 376, 384-87 (Peter Cane & Herbert M. Kritzer eds., 2010) (surveying the literature on the "judicialization" of politics and the reasons for which political actors often tolerate and even encourage policymaking by independent courts).
71. E.g., Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 NW. U. L. REV. 1483 (2007) (offering empirical evidence that judicial preferences are not necessarily stable over time).
72. See, e.g., GINSBURG, supra note 41 (arguing that governments at risk of losing power provide themselves with "political insurance" by empowering courts to act as a check against future governments);
73. HIRSCHL, supra note 41 (arguing that governing elites who face loss of power engage in "hegemonic preservation" by deliberately empowering courts to interfere with policymaking by potentially unfriendly future regimes);
74. ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE 46-50 (1992) (observing that the enhancement of presidential power was prominent, if not dominant, among Charles de Gaulle's motives for creating the Conseil Constitutionnel);
75. see also McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. ECON. & ORG. 180, 189-95 (1999) (arguing that Democrats abandoned their earlier opposition to the Administrative Procedure Act and chose to support its enactment as a means of entrenching New Deal policy against an anticipated Republican political tide).
76. J. MARK RAMSEYER & ERIC B. RASMUSEN, MEASURING JUDICIAL INDEPENDENCE: THE POLITICAL ECONOMY OF JUDGING IN JAPAN 125-32 (2003).
77. NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], art. 79, para. 5, art. 80, para. 1;
78. Saibansho ho [Court Act], Law No. 59 of 1947, art. 50, translated in 2 EHS LAW BULL. SER. no. 2010 (2005) (providing that lower-court judges must retire at age sixty-five and Supreme Court Justices must retire at age seventy).
79. See, e.g., Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Independence of the Judiciary, G.A. Res. 40/146, ¶ 11, U.N. Doc. A/RES/40/146 (Dec. 13, 1985) (deeming it consistent with judicial independence that judges may be subject to a mandatory retirement age, as long as that age is "adequately secured by law").
80. See infra section III.A.2.
81. See, e.g., DAVID BEATTY, CONSTITUTIONAL LAW IN THEORYAND PRACTICE 121 (1995) ("Among comparativists, constitutional review in Japan is regarded as the most conservative and cautious in the world.");
82. Kazuyuki Takahashi, Why Do We Study Constitutional Laws of Foreign Countries, and How?, in DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW 35, 47 (Vicki C. Jackson & Mark Tushnet eds., 2002) (condemning the SCJ as "a court so subdued as to deprive judicial review of all its significance").
83. See Law, supra note 31, at 1547.
84. See, e.g., id. at 1546-49 (describing the conservatism of the Japanese Supreme Court);
85. Setsuo Miyazawa, Administrative Control of Japanese Judges, 25 KOBE U. L. REV. 45 (1991) (describing the various "administrative mechanisms" that help to ensure the conservatism of Japanese lower court judges).
86. See John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust, in LAW IN JAPAN: ATURNING POINT 99, 100-02 (Daniel H. Foote ed., 2007). The Japanese judiciary also includes summary courts, which handle small claims and petty offenses, and specialized family courts
87. See id. at 100-01.
88. See Francisco Ramos Romeu, The Establishment of Constitutional Courts: A Study of 128 Democratic Constitutions, 2 REV. L. & ECON. 103, 103-07 (2006) (contrasting the "paradigmatic American and European models" of judicial review);
89. Alec Stone Sweet, Constitutions and Judicial Power, in COMPARATIVE POLITICS 217, 222-26, 231-32 (Daniele Caramani ed., 2008) (contrasting American "judicial review," which is "decentralized," with European "constitutional review" by a specialized constitutional court);
90. Mark Tushnet, Judicial Review of Legislation, in THE OXFORD HANDBOOK OF LEGAL STUDIES 164, 166-67 (Peter Cane & Mark Tushnet eds., 2003) (contrasting specialized and generalist constitutional courts).
91. See Law, supra note 31, at 1551-64 (describing the hiring and advancement practices of the Japanese judiciary).
92. See Frank K. Upham, Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary, 30 LAW & SOC. INQUIRY 421, 453 (2005) ("[E]ven readers more familiar with the bureaucratic judiciaries of the civil law world will be surprised by the personnel manipulation and unrelenting supervision of the Japanese judicial system."). There may be a functional relationship between diffuse judicial review, on the one hand, and strong internal discipline, on the other. It is plausible to think that, as a practical matter, Japan's unusual combination of diffuse constitutional review and entry-level judicial hiring necessitates an unusual degree of internal discipline in order to keep novice judges with no professional or legal experience from exercising the power of judicial review indiscriminately, at no professional cost to themselves, and subject only to the possibility of reversal on appeal.
93. See The Vote That Changed Japan, supra note 31.
94. The LDP did at one point make a point of choosing a conservative Chief Justice in response to prominent pro-labor decisions by the Court. See Law, supra note 31, at 1592-93 (describing the decisions concerning the right of public employee unions to strike that precipitated the appointment of the conservative Kazuto Ishida as Chief Justice, and the Court's subsequent and abrupt change in direction following Ishida's appointment).
95. In the United States, however, the appointment of a Chief Justice would hardly begin to ensure ideological obedience on the part of the Supreme Court, much less the entire judiciary. See id. at 1590-92.
96. As a practical matter, the government's reliance on the judiciary is greater with respect to lower court vacancies than to Supreme Court vacancies. Compare infra sections III.A.2-III.A.3 (describing the extensive de facto control exercised by conservative senior judges in the General Secretariat over judicial appointment and promotion matters), with Law, supra note 31, at 1550-51 (noting that, although the Prime Minister typically fills Supreme Court vacancies from a short list of candidates submitted by the Chief Justice, the Chief Justice's short list is itself the product of extensive behind-the-scenes involvement by the Prime Minister's office).
97. See supra Table 1.
98. See Law, supra note 31, at 1565.
99. See id. at 1556-57.
100. See id. at 1546, 1558. The use of the masculine pronoun is deliberate: to date, no woman has reached the position of either Secretary General or Director of the Personnel Affairs Bureau.
101. See id. at 1556.
102. See id. at 1591.
103. See id. at 1563.
104. See id. at 1569.
105. See id. at 1569-70.
106. See id. at 1591.
107. See id. at 1563.
108. See, e.g., LISA HILBINK, JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE 34-35 (2007) (characterizing the Chilean judiciary as a "highly autonomous bureaucracy," and detailing the control exercised by senior judges over the appointment and promotion process);
109. Doris Marie Provine & Antoine Garapon, The Selection of Judges in France: Searching for a New Legitimacy, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 176, 184-85 (Kate Malleson & Peter H. Russell eds., 2006) (describing the extent to whichjudges are responsible for judicial nomination, appointment, and discipline in France);
110. Mary L. Volcansek, Judicial Selection in Italy: A Civil Service Model with Partisan Results, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER, supra, at 159, 162-66 (characterizing the Italian judiciary as combining a "standard ⋯ civil service model for judges" with "an extraordinary degree of [judicial] independence," and reviewing the evolution of Italian judicial administration since 1948).
111. See Law, supra note 31, at 1551-52.
112. Reforms instigated by the bar have made it possible for a small number of attorneys to enter the judiciary from private legal practice. See Daniel H. Foote, Recent Reforms to the Japanese Judiciary: Real Change or Mere Appearance?, 66 HŌ-SHAKAIGAKU [SOC. L.] 128, 134-36 (2007).
113. See Law, supra note 31, at 1553-54.
114. NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], art. 80, para. 1.
115. See RAMSEYER & RASMUSEN, supra note 44, at 22-23 (describing episodes in which the General Secretariat made the decision not to reappoint particular lower court judges).
116. As a formal matter, responsibility for making recommendations to the Supreme Court regarding the appointment and reappointment of lower court judges has, since 2003, belonged to an advisory committee whose members are selected by the Court or, in other words, the General Secretariat. See Foote, supra note 71, at 142-55 (describing the operation of the advisory committee, the kakyū saibansho saibankan shimei shimon iinkai, and noting the secrecy that surrounds it);
117. Law, supra note 31, at 1555 (same).
118. A rare example is that of Yasuaki Miyamoto, who was denied reappointment at least partly for reasons relating to his membership in a left-leaning organization of lawyers, judges, and law professors known as the Young Lawyers Association, or Seihōkyō. See Law, supra note 31, at 1559-60.
119. See id. at 1556-57.
120. See id. at 1558.
121. See id. at 1557 n.63.
122. See id. at 1557.
123. See Haley, supra note 51, at 105.
124. See, e.g., RAMSEYER & RASMUSEN, supra note 44, at 126-27;
125. Law, supra note 31, at 1561.
126. See Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DEPAUL L. REV. 51, 70-75 (2008) (using logit regression analysis to identify the impact of law clerk partisanship on the voting of the Justices, while controlling for the ideology of the Justices);
127. Paul J. Wahlbeck et al., Ghostwriters on the Court?: A Stylistic Analysis of U.S. Supreme Court Opinion Drafts, 30 AM. POL. RES. 166, 175-82 (2002) (using statistical linguistic analysis to show that law clerks put distinct stylistic "fingerprints" on their Justices' opinion drafts).
128. But cf. Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 HOUS. L. REV. 621, 638-45 (2008) (finding on the basis of empirical analysis that law clerks are not responsible for either the increasing length or increasing footnote usage of Supreme Court opinions).
129. Law, supra note 31, at 1579.
130. See id.
131. See id. at 1557-58 (describing the career track of a judge who is en route to becoming a viable candidate for the Supreme Court).
132. See id. at 1579, 1582.
133. Id. at 1580 (quoting two anonymous Justices).
134. See id. at 1584 n.242, 1585 (discussing occasional friction between the clerks and some of the more liberal Justices).
135. Id. at 1581.
136. See Tokuji Izumi, Concerning the Japanese Public's Evaluation of Supreme Court Justices, 88 WASH. U. L. REV. (forthcoming 2011);
137. Law, supra note 31, at 1579.
138. See Law, supra note 31, at 1579.
139. See id. at 1580-81.
140. See id. at 1580.
141. See id. at 1581, 1583.
142. See id. at 1580.
143. See id. at 1580-81.
144. The Justices themselves are aware of the impact of the law clerk system on their own behavior. One recently retired Justice has called publicly for the assignment of law clerks to individual Justices, in order to give the Justices the resources they need to formulate independent views and author separate opinions. See Izumi, supra note 90.
145. See Law, supra note 31, at 1577.
146. See Izumi, supra note 90 (noting that the Japanese Supreme Court decides approximately 7000 cases per year).
147. At any given time, seven of the Court's fifteen members are likely to lack prior judicial experience. In addition to the lone law professor, the bar is allocated an informal quota of four seats on the Court, and the Cabinet typically fills two of the remaining seats with former bureaucrats, one of whom is often a former diplomat. See Law, supra note 31, at 1566-72.
148. Two more seats are typically reserved for former prosecutors. See id. at 1565, 1569.
149. However, the prosecutors often have at least some judicial experience owing to a longstanding practice of temporary personnel exchange, known as hanken kōryu, between the Ministry of Justice and the judiciary. See id. at 1565.
150. See id. at 1566 (discussing the left-leaning orientation of the Japanese bar and the resulting systematic differences between former attorneys and career judges on the Court);
151. id. at 1585-86 (describing how the liberal propensities of the Justices who are former attorneys can be undermined as a practical matter by their dependency on the Court's conservative law clerks).
152. See id. at 1581.
153. See id. at 1581-86.
154. See id. at 1583-84.
155. See id. at 1584-85 ("Even in the best-case scenario, the chōsakan will at most check the 'outline' and 'basic ideas' of a prospective separate opinion, according to one justice who had himself been a chōsakan.").
156. See id. at 1563-64.
157. See id. at 1591.
158. NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], art. 6, para. 2.
159. Id. art. 79, para. 1.
160. See Law, supra note 31, at 1551.
161. See id. at 1565.
162. See id. at 1550-51, 1565.
163. That no prime minister in recent memory has seen fit to reject the Chief Justice's recommendations as to who should serve on the Court has been construed by some scholars as evidence that the Chief Justice enjoys effectively complete power over the selection of Justices. See Haley, supra note 51, at 106-07, 120;
164. David M. O'Brien & Yasuo Ohkoshi, Stifling Judicial Independence from Within: The Japanese Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD, supra note 21, at 37, 37-39, 46 (both describing the role of retiring Chief Justices in choosing their replacements).
165. It is a mistake to conclude from this fact, however, that the government takes no interest in the ideological composition of the Court and the Chief Justice has free rein to choose whomever he wishes. See Law, supra note 31, at 1550-51 (describing a process of negotiation between the Cabinet Secretary and the Secretary General that yields nominees to whom the Prime Minister has already agreed).
166. See Law, supra note 31, at 1572, 1591.
167. Although the government does become involved in the selection of SCJ candidates, its involvement takes place in highly discreet fashion. In practice, the short list of candidates that the Chief Justice ultimately submits for each vacancy to the Prime Minister reflects prior discussion and negotiation between high-level representatives of the Chief Justice and the Cabinet. See id. at 1550-51.
168. Even the Secretary General may not be privy to the identity of the next Chief Justice until the choice has already been made. See id. at 1592.
169. In the United States, Justices with prior experience on the circuit courts do not appear to be ideologically distinguishable from those who lack such experience. See Lee Epstein et al., Circuit Effects: How the Norm of Federal Judicial Experience Biases the Supreme Court, 157 U. PA. L. REV. 833, 861-64 (2009).
170. However, one might expect professionalization and indoctrination to have more of an impact in the context of the Japanese judiciary, given that it bears a greater organizational resemblance to the United States military than to the United States Judiciary. See Haley, supra note 51, at 105 (drawing the military analogy).
171. Even the Justices, it should be noted, have at least some incentive to behave if they harbor hopes of one day being promoted to Chief Justice, which remains attractive to sitting members of the Court on account of the unusual power and prestige of the office. The Chief Justice is on an equal constitutional footing with the Prime Minister; they alone share the distinction of being appointed directly by the Emperor. See NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], art. 6. The other members of the Court, by contrast, are appointed by the Cabinet, as are lower court judges. See id. arts. 79, 80. In interviews with the author, current and former Justices who had been career judges clearly conveyed the sense that the position of Chief Justice was highly desirable to sitting members of the Court: they repeatedly brought up the topics of whether they had been contenders for the position of Chief Justice and which Justices stood a chance of being promoted.
172. See RAMSEYER & RASMUSEN, supra note 44, at 126, 130 (pointing out that the LDP could, if it wished, set a very high retirement age, and opining that the deliberate use of a lower age limit facilitates political control of the judiciary);
173. Law, supra note 31, at 1575-76 (documenting the existence of this strategy on the basis of interviews conducted with current and former Supreme Court Justices with firsthand experience in the selection of candidates for the Court);
174. J. Mark Ramseyer & Eric B. Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL. SCI. REV. 331, 333 (2001) (hypothesizing that the LDP's desire to mitigate the problem of ideological drift on the part of the Justices, combined with its confidence that it would retain political power indefinitely, led the LDP to adopt a deliberate strategy of appointing Justices near retirement age).
175. See Law, supra note 31, at 1575.
176. See id. at 1577 (quoting one Justice's lament that the brevity of tenure on the Court prevents its members from developing "confidence" in the area of constitutional adjudication).
177. See supra Table 1.
178. See THE FEDERALIST NOS. 78, 79, at 464-72 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
179. See supra text accompanying notes 63-64 (discussing the formal supervisory and decisionmaking power of the Justices of the SCJ in their collective capacity as the saibankan kaigi, or judges' conference).
180. See, e.g., David S. Law & Sanford Levinson, Why Nuclear Disarmament May Be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments, 39 U. RICH. L. REV. 923, 926 n.15 (2005) (noting that less than 0.5% of all circuit court decisions are ever reviewed by the Supreme Court);
181. McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1641 (1995) (characterizing the Supreme Court as possessing a "fixed 'budget' that determines the number of cases that it can hear each year," and noting the existence of a sizeable "gap between the Court's capacity [to hear cases] and the number of cases decided by lower courts").
182. Indeed, even if the new government accomplishes the spectacular feat of filling a majority of seats on each and every one of the lower federal courts, two institutional characteristics of those courts will combine to blunt the effectiveness of an appointments-based strategy. The first is random case assignment at both the district and circuit court levels. The second is that cases are often heard by unrepresentative samples of the court as a whole. At the district court level, a case is heard by a single judge who may be utterly out of sync with the rest of the court. (By contrast, in Japan, many cases at the district court level-such as any criminal case involving a minimum prison sentence of one year or more-must be heard by three-judge panels, which dampens the effect of individual outlier judges (to the extent that such outliers even exist)). See Overview of the Judicial System in Japan, SUPREME COURT OF JAPAN, http://www.courts.go.jp/english/system/system.html (last visited Feb. 13, 2011). Meanwhile, at the circuit court level, the sample size is slightly larger in the case of a regular three-judge panel and larger still in the case of an en banc panel, but it remains the case, especially on larger courts, that individual panels will not be representative of the ideological mix of the court as a whole. Together, these characteristics ensure that case outcomes will not always reflect the wishes of a bare majority of the court, and that sensitive cases will on occasion be decided by judges belonging to the ideological minority. Consequently, the arduous and time-consuming process of gaining ideological sway over the Supreme Court must be writ large and repeated many times over for the Judiciary as a whole.
183. See Epstein et al., supra note 42, at 1504-20 (documenting, and offering examples of, the phenomenon of ideological drift on the Supreme Court).
184. See supra Table 1 (setting forth a typology of different types of agents).
185. See id.
186. See Terry M. Moe, The Politicized Presidency, in THE NEW DIRECTION IN AMERICAN POLITICS 235 (John E. Chubb & Paul E. Peterson eds., 1985) (discussing the presidential strategies of "politicization" and "centralization" for asserting control over agencies and policymaking, and identifying the ways in which presidents imbue agencies as deeply as possible with their own ideological preferences).
187. See Law, supra note 31, at 1545-46.
188. See supra note 10 and accompanying text (noting the intensity of public and political opposition to Franklin Roosevelt's Court-packing plan, even among his erstwhile supporters).
189. See FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT (1972), reprinted in 57 F.R.D. 573 (1973);
190. Warren E. Burger, Annual Report on the State of the Judiciary, 69 A.B.A. J. 442, 443 (1983) (describing Burger's role);
191. Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 684, 689-92 (1984) (recounting the history of the Freund Committee).
192. The Freund Committee's proposal for a National Court of Appeals is distinguishable from both the Hruska Commission's proposal for a similarly named court, see COMM'N ON REVISION OF THE FED. COURT APPELLATE SYS., STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 8 (1975), reprinted in 67 F.R.D. 195, 208 (1975), and from Chief Justice Burger's suggestion to create a special temporary panel of the Federal Circuit
193. see Burger, supra, at 447, neither of which would have vested de facto power over the Supreme Court's docket in a newly created body.
194. At the time the Freund Committee submitted its report in the 1971 Term, the Supreme Court faced a total docket of 4371 cases. See FED. JUDICIAL CTR., supra note 132, at 620 tbl.V. According to the Court's own website, its current docket exceeds 10,000 cases per Term.
195. See The Justices' Caseload, SUPREME COURT OF THE UNITED STATES, http://www.supremecourtus.gov/about/justicecaseload.pdf (last visited Oct. 1, 2010);
196. see also David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 TEX. L. REV. 947, 967 (2007) (book review) (documenting the decrease in both the number and percentage of cases that the Supreme Court decides on the merits, and noting that the Court granted review over 3% of the time in the early 1980s but has done so less than 1% of the time since the October 1999 Term);
197. id. at 987 (observing that the number of certiorari petitions has nearly doubled since the mid-1980s);
198. The Supreme Court, 2009 Term-The Statistics, 124 HARV. L. REV. 411, 418 tbl.II(B) (2010) (reporting that the Court granted only 0.9% of 8131 petitions for review in its 2009 Term).
199. See FED. JUDICIAL CTR., supra note 132, at 590-95.
200. Id. at 592. Notably, the Freund Committee's proposal explicitly contemplates NCA review of state court as well as lower federal court decisions.
201. See id. There is, moreover, no obvious constitutional obstacle to the inclusion of state court judgments in the NCA's jurisdiction.
202. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 349-50 (1816) (characterizing the removal jurisdiction exercised by lower federal courts as a form of appellate jurisdiction);
203. THE FEDERALIST NO. 82, at 495 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (perceiving "no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages"). The inclusion of state court judgments within the appellate jurisdiction of the NCA is crucial both to ensure the effective independence of the NCA from the Supreme Court and to consolidate its control over the interpretation of federal law: if the Supreme Court remained free to hear appeals from state court judgments at its own discretion, it would be capable of overruling the NCA's decisions in substance.
204. FED. JUDICIAL CTR., supra note 132, at 592.
205. See id. at 591 (proposing a "system of automatic rotation" under which "circuit judges in active service" would be selected in a simultaneous combination of ascending and descending order of seniority to serve "three-year staggered terms" on the NCA).
206. Cf. Tamulonis, supra note 37, at 877-78 (describing the arguments offered by Republicans for splitting the Ninth Circuit).
207. Lawrence Gene Sager, Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 19-20 (1981);
208. see also, e.g., Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 VA. L. REV. 1043, 1091-92 (2010) ("[W]hether Article III requires a residuum of Supreme Court supervisory jurisdiction, even in cases in which Congress has invoked its power to create an exception to the Court's appellate jurisdiction, is not only an open question, but also a difficult one.").
209. U.S. CONST. art. III, § 2, cl. 2 ("[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.");
210. see, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 508-10, 514-15 (1868) (upholding the ability of Congress to prevent an unfavorable decision in a pending case by stripping the Court of its appellate jurisdiction over that case).
211. Pub. L. No. 109-148, § 1005, 119 Stat. 2680, 2742 (2005).
212. Pub. L. No. 109-366, § 950g, 120 Stat. 2600, 2622 (2006).
213. Boumediene v. Bush, 553 U.S. 723 (2008)
214. and Hamdan v. Rumsfeld, 548 U.S. 557 (2006), addressed, but did not invalidate, these provisions.
215. 28 U.S.C. § 2244(b) imposes a bar against successive habeas petitions. To circumvent the bar, a three-judge appeals court panel must conclude that the petitioner has made a "prima facie showing" that one of the exceptions to the statutory bar has been satisfied.
216. See 28 U.S.C. § 2244(b)(3)(C) (2006).
217. The petitioner then receives a certificate of appealability that permits him or her to obtain review on the merits in district court. See id. § 2244(b)(3)(D) (2006).
218. See Neal Devins, How Not to Challenge the Court, 39 WM. & MARY L. REV. 645, 657 (1998) ("[A]lthough the Justices will, up to a point, suffer fools on the Hill, the Court must resist direct challenges to its institutional independence.").
219. The manner in which the Court reacts to such challenges may in part reflect its perception of the magnitude and intensity of the political forces that it faces. Compare, e.g., McCardle, 74 U.S. (7 Wall.) at 513-15 (accommodating the Reconstruction Congress's campaign against supporters of the Confederacy by upholding the repeal of the Court's jurisdiction over a pending habeas appeal, and acknowledging no limits upon the power of Congress to strip the Court of appellate jurisdiction)
220. and Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (responding to the Republican takeover of both Congress and the Presidency by acquiescing in both the circuit-riding requirement for Justices and the elimination of Article III circuit judgeships held by Federalists)
221. with, e.g., City of Boerne v. Flores, 521 U.S. 507, 512, 532-36 (1997) (striking down the Religious Freedom Restoration Act, a bipartisan congressional effort to overturn the Court's earlier decision in Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 885 (1990))
222. and Plaut v. Spendthrift Farm Inc., 514 U.S. 211, 226-28 (1994) (holding that legislation reinstating securities actions that had been dismissed as untimely amounted to an impermissible effort to reopen final judgments).
223. There are many forms that such an argument might take. See, e.g., JAMES E. PFANDER, ONE SUPREME COURT: SUPREMACY, INFERIORITY, AND THE JUDICIAL POWER OF THE UNITED STATES (2009) (arguing that Article III's establishment of "one supreme Court" confers upon the Court ultimate supervisory authority over all state and federal courts alike).
224. But see Fallon, supra note 139, at 1092 ("Scholars who have studied the originally understood significance of the Constitution's designation of one federal court as 'supreme' and of others as 'inferior' have reached radically different judgments⋯ . I can only question whether there even was a clear, widely shared original understanding of whether the Supreme Court's supremacy and the lower courts' inferior status entailed that the former must possess supervisory authority over the latter.").
225. See John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 10 (1983).
226. See Estreicher & Sexton, supra note 132, at 806;
227. Stevens, supra note 147, at 21.
228. See Stevens, supra note 147, at 19-20.
229. The history of Taiwan's Constitutional Court, formerly known as the Council of Grand Justices, illustrates the impact of supermajority voting requirements on a court's ability to make policy. In response to a 1957 judicial decision that questioned its formal constitutional status as the country's sole legislative body, Taiwan's Legislative Yuan retaliated against the Court by restricting the Court's ability to issue constitutional interpretations to those cases in which a quorum of at least three-quarters of the Justices could muster a vote of at least three-quarters of those present in favor of the interpretation in question. See Wen-Chen Chang, Transition to Democracy, Constitutionalism and Judicial Activism: Taiwan in Comparative Constitutional Perspective 192-96 (June 2001) (unpublished J.S.D. dissertation, Yale Law School) (on file with author).
230. The Court's output of constitutional interpretations declined steeply and did not recover for several decades. See id. at 200 n.18, 203 fig.1 (reporting the number of constitutional decisions rendered over each period of the Constitutional Court's history, and describing the subsequent adoption in 1993 of a two-thirds voting threshold).
231. FED. JUDICIAL CTR., supra note 132, at 607.
232. See, e.g., Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1681 & n.9, 1682-83 (2004) (citing cases establishing that the Court has held this view "since at least 1825," and arguing in particular that Mistretta v. United States, 488 U.S. 361 (1989), makes "legally untenable" any argument that "court rulemaking is an inherent judicial power").
233. See Rules Enabling Act, 28 U.S.C. §§ 2071-72 (2006) (authorizing the federal courts to "prescribe rules for the conduct of their business," and specifically giving the Supreme Court "the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts ⋯ and courts of appeals");
234. Mistretta, 488 U.S. at 388-97;
235. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts.");
236. 1 DANIEL R. COQUILLETTE, MOORE'S FEDERAL PRACTICE § 1.04 (3d ed. 2010) (discussing the statutory authorization for the Federal Rules of Practice and Procedure);
237. 23 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 500.01 (3d ed. 1997) (discussing the statutory authority of the federal courts to adopt rules and practices of procedure "not repugnant to the laws of the United States");
238. Burbank, supra note 152, at 1682 ("[T]he puzzle is not where Congress gets its power, but rather, particularly in the case of supervisory court rules, how the exercise of a power to promulgate prospective, legislation-like rules can be squared with the grant of judicial power in Article III.").
239. See James F. Fagan, Jr., When Does Four of a Kind Beat a Full House?: The Rise, Fall and Replacement of the Rule of Four, 25 NEW ENG. L. REV. 1101, 1102-07 (1991);
240. Jeffrey R. Lax, Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four, 15 J. THEORETICAL POL. 61, 67-68 & n.17 (2003) (emphasizing the ability of a majority of the Court to change the rule at will);
241. Joan Maisel Leiman, The Rule of Four, 57 COLUM. L. REV. 975, 981 (1957);
242. Stevens, supra note 147, at 10-14.
243. See U.S. CONST. art. III, § 2, cl. 2 ("[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.");
244. supra notes 139-40 and accompanying text (discussing the scope of congressional power to limit the Court's appellate jurisdiction);
245. cf. Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 GA. L. REV. 893, 971-95 (2003) (arguing that Congress has the power under the Exceptions Clause of Article III to impose upon the Supreme Court a rule that invalidation of a federal statute requires the affirmative vote of at least six Justices).
246. See Judiciary Act of 1925, ch. 229, 43 Stat. 936 (1925);
247. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1660-1704 (2000) (recounting the intense lobbying by Chief Justice Taft in favor of a discretionary docket that culminated in the adoption of the Judiciary Act of 1925, popularly known as the Judges' Bill).
248. Compare, e.g., Burbank, supra note 152, at 1681 (arguing that the lawmaking powers of Congress under Article I are sufficient to "enable Congress to make prospective law throughout the broad field of procedure")
249. with, e.g., Shugerman, supra note 155, at 971 (locating Congress's power to impose a six-vote requirement to invalidate federal statutes in the Exceptions Clause of Article III).
250. The exact number of seats on the NCA makes no difference for present purposes; it may be assumed, for the sake of convenience, that there are to be seven seats, as originally proposed by the Freund Committee. See FED. JUDICIAL CTR., supra note 132, at 591.
251. See id.
252. See U.S. CONST. art. II, § 2, cl. 2 (requiring that the President appoint "Officers of the United States" "by and with the Advice and Consent of the Senate").
253. See Lee Epstein et al., Selecting Selection Systems, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH, supra note 19, at 191, 203 tbl.9.2 (reporting that nearly three-quarters of states employ some form of ostensibly merit-based selection system that combines reliance upon a merit commission with nonpartisan retention elections).
254. See, e.g., MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS 119-20 (rev. ed. 2003);
255. SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 238 (1997);
256. Jon Gottschall, Carter's Judicial Appointments: The Influence of Affirmative Action and Merit Selection on Voting on the U.S. Courts of Appeals, 67 JUDICATURE 165, 166 (1983).
257. See Jonathan Remy Nash & Rafael I. Pardo, An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review, 61 VAND. L. REV. 1745, 1768-69 & 1768 n.91 (2008) (describing the Ninth Circuit's use of local merit screening committees in selecting bankruptcy judges).
258. See Judith L. Maute, Selecting Justice in State Courts: The Ballot Box or the Backroom?, 41 S. TEX. L. REV. 1197, 1232-37 (2000) (noting widespread "distrust" that so-called merit selection of judges "moves the politics from out in the open, to the privacy of the backroom").
259. Notwithstanding his use of merit commissions, Carter's judicial appointees turned out on average to be more liberal than those of either the Republican or Democratic presidents who preceded and succeeded him. It surely did not hurt matters that the White House remained responsible for the selection of the commission members themselves. See, e.g., Gottschall, supra note 162, at 169-71.
260. Likewise, the use of nonpartisan nominating commissions at the state level has not precluded partisan considerations from coming into play. See, e.g., Stephen J. Ware, Selection to the Kansas Supreme Court, 17 KAN. J.L. & PUB. POL'Y 386, 393 (2008) (noting that, when faced with a short list of candidates for the Kansas Supreme Court produced by the nominating commissions, Kansas's governors have overwhelmingly chosen a candidate from the same party whenever one is available).
261. See, e.g., KATE MALLESON, THE NEW JUDICIARY: THE EFFECTS OF EXPANSION AND ACTIVISM 92-93 (1999) (highlighting the role that the bench and bar have traditionally played in the English judicial appointments process);
262. ROBERT STEVENS, THE ENGLISH JUDGES 49-50 (rev. ed. 2005) (describing how the Prime Minister violated expectations in 1996 by passing over the judges' own choice for the position of Lord Chief Justice);
263. Law, supra note 31, at 1566-68 (discussing the longstanding role of Japan's leading bar associations in selecting candidates for four of the fifteen seats on the Japanese Supreme Court);
264. Judith L. Maute, English Reforms to Judicial Selection: Comparative Lessons for American States?, 34 FORDHAM URB. L.J. 387, 409-22 (2007) (describing recent reforms of the English judicial appointments process and the representation of the bar on the newly formed judicial appointments commission);
265. Ware, supra note 165, at 386-87 (describing how Kansas "gives the members of its bar majority control over the selection of state supreme court justices" via the bar's dominance of the Supreme Court Nominating Commission).
266. See, e.g., STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 157-58, 167-71 (2008);
267. Laura E. Little, The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready To Give Up on the Lawyers?, 10 WM. & MARY BILL RTS. J. 37 (2001) (describing the second Bush Administration's decision to exclude the ABA from prescreening of judicial nominees);
268. Richard L. Vining, Jr. et al., Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees (Mar. 26, 2009) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1368891 (finding empirical evidence of "some systematic bias" on the part of the ABA in favor of Democratic nominees, especially in the conferral of the "Well Qualified" rating).
269. See infra section V.A (citing evidence that elite law faculties skew strongly Democratic, and noting that they tend to retain the same ideological character over time because they are responsible for selecting their own replacement members).
270. See, e.g., Walter Dellinger, Op-Ed., Broaden the Slate, WASH. POST, Feb. 25, 2003, at A23 (proposing that the White House invite members of the opposition party in the Senate to participate in selecting an indivisible slate of nominees);
271. E.J. Dionne Jr., Editorial, Order and the Courts, WASH. POST, May 9, 2003, at A35 (describing Democratic Senator Charles Schumer's proposal to set up bipartisan nomination commissions).
272. U.S. CONST. art. II, § 2, cl. 2 (specifying that principal "Officers of the United States" are to be appointed by the President with the advice and consent of the Senate, whereas the appointment of "inferior Officers" may be vested by Congress "in the President alone, in the Courts of Law, or in the Heads of Departments").
273. Compare Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 880-82 (1991) (holding that Tax Court "special trial judges" with the power to "take testimony, conduct trials, rule on the admissibility of evidence, and ⋯ enforce compliance with discovery orders" "perform more than ministerial tasks" and therefore cannot be deemed "mere employees" or "lesser functionaries" but instead constitute "inferior Officers" for purposes of the Appointments Clause)
274. with Auffmordt v. Hedden, 137 U.S. 310, 326-27 (1890) (concluding that a "merchant appraiser" who appraised goods on an ad hoc basis for purposes of calculating import duties was neither a principal nor inferior "officer" within the meaning of the Appointments Clause because his position was "without tenure, duration, continuing emolument, or continuous duties, and he act[ed] only occasionally and temporarily").
275. See supra note 69 (discussing the Chilean, French, and Italian judiciaries);
276. supra Part III (describing the appointment and promotion mechanisms of the Japanese judiciary).
277. 28 U.S.C. § 631 (2006) (authorizing district court judges to appoint magistrate judges).
278. 28 U.S.C. § 152(a) (2006) (authorizing the circuit courts to appoint bankruptcy judges);
279. Tuan Samahon, Are Bankruptcy Judges Unconstitutional? An Appointments Clause Challenge, 60 HASTINGS L.J. 233, 244-47 (2008) (describing the reasons for which Congress chose to vest this responsibility in the circuit courts).
280. Freytag, 501 U.S. at 880-92 (holding that the power to appoint "special trial judges" in tax proceedings may be vested in the Chief Judge of the Tax Court, an Article I court, because "special trial judges" are "inferior Officers" and the Tax Court is a "Court[] of Law" for purposes of the Appointments Clause).
281. See U.S. CONST. art. II, § 2, cl. 2;
282. Freytag, 501 U.S. at 880-92 (upholding the appointment of "special trial judges" by the Chief Judge of the Tax Court as consistent with the Appointments Clause).
283. Morrison v. Olson, 487 U.S. 654, 671 (1988);
284. see id. at 671-72 (holding that an independent counsel is an "inferior officer" because, inter alia, she is subject to removal by a higher official, her position is temporary, and her jurisdiction is limited in scope).
285. Id. at 671 (emphasizing that an independent counsel is "to some degree 'inferior' in rank and authority" to the Attorney General and concluding partly on that basis that an independent counsel is an "inferior officer");
286. see also United States v. Raddatz, 447 U.S. 667, 681-84 (1980) (holding that the use of magistrate judges to prepare proposed findings of fact "does not violate Art. III so long as the ultimate decision is made by the district court").
287. It is awkward to suggest, for example, that Article III courts could be subjected to plenary appellate review by a court consisting entirely of "inferior officers." It is also questionable whether "inferior officers" appointed without presidential nomination or Senate confirmation could qualify as Article III judges. If the members of the NCA are not Article III judges, it becomes extremely difficult to argue under existing case law that the NCA could exercise appellate review over the full range of cases heard by the lower federal courts. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-56 (1989) (holding that non-Article III tribunals may not decide cases involving "private rights," such as the right of a bankruptcy trustee to assert claims that "resemble state-law contract claims");
288. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57-87 (1982) (plurality opinion) (ruling that Article I bankruptcy judges may not exercise jurisdiction over traditional common law claims);
289. Raddatz, 447 U.S. at 677-84 (1980) (holding that the holding of evidentiary hearings by magistrate judges is consistent with Article III because "the entire process takes place under the district court's total control and jurisdiction");
290. Samahon, supra note 174, at 242-43 (discussing Northern Pipeline).
291. See FED. JUDICIAL CTR., supra note 132, at 591.
292. See Tracey E. George & Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging, 61 VAND. L. REV. 1, 30, 49 (2008) (noting that the powers of a circuit court chief judge include those of designating district judges to sit on the circuit and managing the participation of senior judges);
293. David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453, 467-68 (2007) (observing that senior judges may end up serving mostly or entirely on courts other than their own).
294. See Judiciary Act of 1789, 1 Cong. Ch. 20, § 4, 1 Stat. 73, 74-76;
295. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting the argument that Supreme Court Justices must be given "distinct commissions" as circuit judges before Congress may assign them to sit on circuit courts);
296. David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1719-21, 1743-44 (2007) (observing that "the constitutionality of circuit riding has been settled for over two hundred years").
297. See 50 U.S.C. § 1803(a)-(b), (d) (2006);
298. Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239 (2007).
299. The Economic Stabilization Act of 1970 conferred upon the Temporary Emergency Court of Appeals the same powers possessed by any other federal court of appeals and directed the Chief Justice to select its members from the existing ranks of the district and circuit courts. See Alan B. Morrison & D. Scott Stenhouse, The Chief Justice of the United States: More than Just the Highest Ranking Judge, 1 CONST. COMMENT. 57, 61 (1984);
300. History of the Federal Judiciary: Temporary Emergency Court of Appeals, 1971-1992, FED. JUDICIAL CTR., http://www.fjc.gov/history/home.nsf/page/courts- special-tecoa.html (last visited Oct. 3, 2010).
301. There is a potentially relevant distinction for purposes of the Appointments Clause between the NCA judges, on the one hand, and the FISA and TECA judges, on the other, and that is the extent to which NCA judges may insulate their own judgments from Supreme Court review by refusing to certify cases for appeal to the Supreme Court. The FISA and TECA judges may be categorized as "inferior Officers" in part because the judgments of both courts are subject to review without restriction by the Supreme Court, thus rendering them subordinate in both form and substance to the Supreme Court. See 50 U.S.C. § 1803(b) (requiring the FISA Court to transmit the record under seal to the Supreme Court in the event that a certiorari petition is filed);
302. Economic Stabilization Act Amendments of 1971, Pub. L. No. 92-210, § 211, 85 Stat. 743, 750 (expired 1982) (providing that judgments of the TECA are subject to review by the Supreme Court "in the same manner as a judgment of a United States court of appeals").
303. Nevertheless, in defense of the NCA's "inferior" status, it can still be said that its judgments remain formally subject to review by the Supreme Court, notwithstanding the appeal certification requirement. As a last resort, if the certification requirement proves fatal to the classification of NCA judges as "inferior Officers," reliance could be placed in the alternative upon the proposed Rule of More than Four to effectively insulate the NCA's judgments from Supreme Court review. See supra section IV.A.2.
304. 50 U.S.C. § 1803(a).
305. 28 U.S.C. § 1407(d) (2006).
306. § 211, 85 Stat. at 749.
307. 28 U.S.C. § 49 (2006).
308. See George & Yoon, supra note 181, at 30-31.
309. Anecdotal reports and empirical research alike leave little doubt that Chief Judge David Sentelle, a Reagan appointee, is one of the most conservative members of his court. See, e.g., Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2175 & n.74 (1998) (noting then-Judge Sentelle's reputation for "staunch conservatism" and the controversy surrounding his ex parte contact with Senators Helms and Faircloth prior to the replacement of Robert Fiske with the "presumably more aggressive" Kenneth Starr as Whitewater special prosecutor);
310. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1760 n.86 (1997) (finding that then-Judge Sentelle's voting record in environmental cases was more conservative than that of any Democratic appointee on the D.C. Circuit, and that the difference was statistically significant). (Pubitemid 127445656)
311. Although Chief Judge Kozinski may be a more idiosyncratic conservative than his counterpart on the D.C. Circuit, ultimately he too is a conservative and a Reagan appointee. See David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. CIN. L. REV. 817, 857, 858 fig.9 (2005) (estimating then-Judge Kozinski's ideal point in asylum cases to fall to the right of the majority of his colleagues on the Ninth Circuit, including a number of fellow Republican appointees);
312. id. at 852 fig.8 (noting the comparatively low percentage of cases in which then-Judge Kozinski voted in favor of asylum).
313. See Burger, supra note 132, at 447.
314. Chief Judge Michel, a Reagan appointee, retired effective May 31, 2010, and was replaced by Judge Randall Rader, a George H.W. Bush appointee. See Mike Scarcella, Federal Circuit Chief Judge Paul Michel Announces Retirement, THE BLT: THE BLOG OF LEGAL TIMES (Nov. 21, 2009, 1:18 PM), http://legaltimes. typepad.com/blt/2009/11/federal-circuit-chief-judge-paul-michel-announces- retirement. html. Interestingly, although it is a challenge to discern anything resembling a political ideology from the way in which a judge votes in patent cases, empirical analysis of the voting behavior of Federal Circuit judges in claim construction cases suggests that both judges are at least in some sense moderate.
315. See R. Polk Wagner & Lee Petherbridge, Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance, 152 U. PA. L. REV. 1105, 1160 tbl.4 (2004) (identifying both Chief Judge Michel and Judge Rader as "swing judges" in claim construction cases).
316. In order, they are: David Sentelle, a Reagan appointee; Dennis Jacobs, a Bush Sr. appointee; Edith Jones, a Reagan appointee; Alice Batchelder, a Bush Sr. appointee; Frank Easterbrook, a Reagan appointee; William Riley, appointed by the second Bush; Alex Kozinski, a Reagan appointee; Joel Dubina, a Bush Sr. appointee; and Randall Rader, a Bush Sr. appointee. The only exceptions as of this writing are the chief judges of the First, Third, Fourth, and Tenth Circuits, all Clinton appointees: Sandra Lynch of the First Circuit, Theodore McKee of the Third Circuit, William Traxler Jr. of the Fourth Circuit, and Mary Beck Briscoe of the Tenth Circuit.
317. See supra Part III.
318. See, e.g., J.A.G. GRIFFITH, THE POLITICS OF THE JUDICIARY 17-22 (5th ed. 1997) (describing the political and socioeconomic homogeneity of the English bench);
319. MALLESON, supra note 166 (noting that the system of "'secret soundings'" that was long used in England for selecting judges amounted to a form of "self-replication" and drew criticism for "excluding good candidates who d[id] not share the same or similar characteristics" as the judges and senior lawyers whose advice was sought).
320. The English judicial selection system underwent a dramatic overhaul in 2006. See Constitutional Reform Act, 2005, c. 4 (Eng.);
321. Maute, supra note 166, at 388-91 (describing the magnitude of the changes wrought by the Constitutional Reform Act, including a move away from the practice of "'secret soundings'" toward "modern personnel practices").
322. See, e.g., HIRSCHL, supra note 41, at 66-68 (arguing that the influence of the existing Israeli judiciary over the selection of judges helps to explain the judiciary's consistently liberal bent);
323. Shimon Shetreet, Judicial Independence and Accountability in Israel, 33 INT'L & COMP. L.Q. 979, 992-93 (1984) (noting that Israel's nine-member judicial appointments committee must by statute include three members of the Supreme Court and two representatives of the Israeli bar association).
324. Compare Epstein et al., supra note 42, at 1494 fig.2 (graphing Justice Black's sharp ideological shift to the right on civil liberties issues during the 1960s, after two decades of initial drift to the left)
325. with id. at 1494-95 & 1495 fig.3 (graphing Justice Blackmun's "near complete flip, from one of the Court's most conservative members to among its most consistent civil libertarians").
326. See TELES, supra note 167, at 14 (explaining the greater extent of liberal "entrenchment" in law schools than in the courts by noting that, "unlike the courts, law school faculties are almost totally self-reproducing").
327. See id. ("[W]e would expect law faculties to reproduce themselves ideologically, even in the absence of an explicit individual desire to discriminate, by defining alternative ideological research projects as marginal or unimportant.").
328. See supra note 150 and accompanying text;
329. infra notes 223-25 and accompanying text.
330. See, e.g., TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK 206-09 (2006);
331. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 140-52 (1996);
332. ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 201-08 (2006);
333. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 444-45 (1979);
334. Peppers & Zorn, supra note 82, at 55-56.
335. Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. REV. 3, 44;
336. see also, e.g., FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 73 (1994) ("Generally, the concepts of law clerk as citation checker and writer of memoranda and insubstantial opinion drafts have outlived any time when they could fairly be said to reflect reality in most chambers.");
337. POSNER, supra note 203, at 151.
338. See, e.g., LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN'S SUPREME COURT JOURNEY 201-06 (2005) (recounting the overtly political machinations of Justice Blackmun's law clerks behind the scenes of the Court's decision in Planned Parenthood v. Casey);
339. PEPPERS, supra note 203, at 109-12 (noting that Justice Murphy's dependence on one of his clerks was widely known within the Court);
340. WARD & WEIDEN, supra note 203, at 151-73, 184-98;
341. WOODWARD & ARMSTRONG, supra note 203, at 444-45 (describing the efforts of law clerks to prevent Justice Brennan from "killing it from the left" or, in other words, driving away centrist Justices by dissenting);
342. Wahlbeck et al., supra note 82, at 169-70, 172 (citing various dramatic examples of law clerk influence, including one clerk's origination of the most famous footnote in constitutional law, footnote four of United States v. Carolene Products, 304 U.S. 144 (1938)).
343. William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74, 75;
344. see also William H. Rehnquist, Another View: Clerks Might "Influence" Some Actions, U.S. NEWS & WORLD REP., Feb. 21, 1958, at 114, 116.
345. See William E. Nelson et al., The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?, 62 VAND. L. REV. 1749, 1793-95 (2009) (documenting the extent to which former Supreme Court clerks follow ideologically distinctive career paths that match the ideological leanings of the specific Justices for whom they worked);
346. Peppers & Zorn, supra note 82, at 67 fig.3.
347. See Peppers & Zorn, supra note 82.
348. Cf. TELES, supra note 167, at 13 (observing that "judges can reasonably be understood as an 'enterprise' that includes their clerks").
349. See supra section III.A.3.
350. POSNER, supra note 203, at 151-52.
351. See Wahlbeck et al., supra note 82, at 167 (quoting Senator John Stennis's argument that law clerks occupied "'far more important'" positions than "'undersecretaries and assistant secretaries of the Executive departments'").
352. See Interview with Judge of the European Court of Human Rights (Oct. 17, 2009) (name withheld).
353. For example, one could provide that the initial membership of the clerkship merit commission described below in section V.A would be selected by Chief Justice Roberts. Alternatively, given the current composition of the Court, it is highly plausible that a majority of current Supreme Court clerks leans to the right. To the extent that this is true, the Court's current clerks could be given responsibility for selecting the initial membership of the clerkship merit commission. To deal with the substantial minority of the Court's clerks who are liberal, one could further provide that the clerks would make all selection decisions by a simple-majority vote.
354. See supra note 202 and accompanying text (emphasizing the usefulness of simple-majority voting rules as a tool for disempowering the ideological minority on any given decisionmaking body). Either way, the merit commission could thereafter be made responsible for selecting its own replacement members in order to ensure that it retains the same ideological bias over time.
355. See supra section IV.B.3 (discussing the crucial role of self-replication in an ideological entrenchment strategy).
356. At present, the relevant statutory provision provides only that the Justices "may appoint law clerks and secretaries," without specifying the number that may be hired, the manner in which they are to be selected, or the applicable salaries. 28 U.S.C. § 675 (2006) ("The Chief Justice of the United States, and the associate justices of the Supreme Court may appoint law clerks and secretaries whose salaries shall be fixed by the Court.").
357. Similarly open-ended provisions govern the hiring of law clerks by other federal courts. The number of clerks that a judge may hire is in practice decided not by Congress, but by the Judicial Conference of the United States. See id. § 712 ("Circuit judges may appoint necessary law clerks and secretaries.");
358. id. § 752 ("District judges may appoint necessary law clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may be imposed by law.");
359. id. § 794 ("The judges of the United States Court of Federal Claims may appoint necessary law clerks and secretaries, in such numbers as the Judicial Conference of the United States may approve for district judges, subject to any limitation of the aggregate salaries of such employees which may be imposed by law.");
360. Todd C. Peppers et al., Inside Chambers: How Federal District Court Judges Select and Use Their Law Clerks, 71 ALB. L. REV. 623, 628 (2008) ("The Judicial Conference continues to have the authority to dictate the number of clerks that may be hired by each judge as well as clerk salaries.").
361. See PEPPERS, supra note 203, at 52.
362. See WARD & WEIDEN, supra note 203, at 73 tbl.2.5 (reporting, inter alia, that 77% of Supreme Court law clerks during the Rehnquist years came from just seven schools).
363. See, e.g., TELES, supra note 167, at 42 (observing that elite law faculties "are now almost exclusively Democratic");
364. John O. McGinnis et al., The Patterns and Implications of Political Contributions by Elite Law School Faculty, 93 GEO. L.J. 1167, 1175 tbl.1a (2005) (documenting the proportion of law professors at elite schools who made financial contributions to Democratic as opposed to Republican candidates).
365. See TELES, supra note 167, at 12.
366. Id. at 11.
367. See supra text accompanying notes 70-71.
368. Selection of the merit commission's members from the schools that currently produce the most clerks would likely have the collateral effect of entrenching those schools as the leading clerk producers. The schools themselves would presumably foresee this outcome and thus support creation of the commission.
369. A proportional representation system is "[a]ny scheme which seeks to ensure that each faction, group, or party in the electing population is represented in the elected assembly or committee in proportion to its size." THE CONCISE OXFORD DICTIONARY OF POLITICS 438 (Iain McLean & Alistair McMillan eds., 3d ed. 2009).
370. For an example of how this type of voting scheme produces the desired effect of denying representation to a conservative minority, consider the electoral scheme upheld by the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55 (1980), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 134.
371. The three members of Mobile's city commission were elected from the city at large, rather than from three separate districts, and no candidate for any of the three seats could be elected without a majority of the total vote. See id. at 59-60.
372. The overall effect of the scheme was to prevent geographically concentrated minorities, such as blacks, from determining who would win any of the three seats, as they might have been able to do under either a scheme of multiple districts or a proportional representation system. See id. at 58.
373. See McGinnis et al., supra note 218, at 1205 tbl.I-A (identifying the University of Virginia and University of Chicago as having law faculties with an above-average proportion of donors to Republican candidates).
374. See Gottschall, supra note 162, at 166-67;
375. Law, supra note 5, at 488;
376. supra notes 162-65 and accompanying text (discussing the use of merit commissions in judicial selection and the actual characteristics and consequences of supposedly merit-based selection mechanisms).
377. The analogy drawn by now-Chief Justice Roberts between judges and umpires at his confirmation hearing has attracted a fair amount of scholarly commentary, most of it unfavorable. See, e.g., RICHARD A. POSNER, HOW JUDGES THINK 78 (2008) (arguing that "[n]either [Chief Justice Roberts] nor any other knowledgeable person actually believed or believes" the umpire analogy);
378. Erwin Chemerinsky, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. REV. 1069, 1069-70 (2006) (deeming it "hard to think of a less apt analogy," and asking why "Chief Justice Roberts, who obviously knows better, [would] use such a disingenuous analogy");
379. Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701, 701-03 (2007) (arguing that the analogy proved politically popular, even though it was highly "inapt," because it "tapped into powerful myths" about what people "want to think" judges do).
380. But see William H. Pryor Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty, 60 FLA. L. REV. 1007, 1013-14 (2008) (drawing heavily upon the "umpire" analogy to construct a conception of the virtue of "judicial modesty").
381. See supra notes 207-08 and accompanying text.
382. See TELES, supra note 167, at 180 (pointing out the tension between the conservative attachment to an "understanding of the rule of law as something that transcends the ideological conflicts of the day," on the one hand, and the conservative efforts to "expose the 'hidden' ideological bias behind the ABA and America's law schools," on the other);
383. supra note 227 and accompanying text (discussing the notion, championed publicly by Chief Justice Roberts, that judges are obligated to decide, and capable of deciding, difficult legal questions in an impartial and objective fashion).
384. See Peppers & Zorn, supra note 82, at 55 (noting the immensity of the clerkship bonuses paid by law firms to former Supreme Court clerks).
385. See supra text accompanying notes 83-93.
386. See supra text accompanying notes 76-81.
387. See supra text accompanying notes 95-96.
388. See supra section III.A.3.
389. See supra section III.A.3.
390. See supra notes 24-27, 37-38 and accompanying text (reviewing efforts to pack and gerrymander various federal courts).
391. See, e.g., MELVIN J. HINICH & MICHAEL C. MUNGER, ANALYTICAL POLITICS 90-113 (1997) (reviewing the social choice literature on the relationship between voting rules and outcomes);
392. WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE passim (1982) (discussing at length the "paradox of voting"-namely, the coexistence of coherent individual preferences with "collectively incoherent choice by majority rule"- and the ways in which the initial choice of preference-aggregation mechanism determines outcomes);
393. MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 93-152 (2009) (offering an introduction to the social choice literature tailored to a legal audience).
394. Moe & Wilson, supra note 40, at 4-5;
395. see also, e.g., Epstein & Knight, supra note 41, at 209-10 (observing that institutional creation and alteration are "strategic choices" that reflect the "relative influence, preferences, and beliefs" of relevant political actors, and that "designers of constitutional courts prefer institutional rules that will best serve their long-term political goals").
396. See, e.g., NATHAN J. BROWN, THE RULE OF LAW IN THE ARABWORLD (1997);
397. GINSBURG, supra note 41;
398. HILBINK, supra note 69;
399. HIRSCHL, supra note 41;
400. TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER (2007);
401. RAMSEYER & RASMUSEN, supra note 44;
402. RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES, supra note 31.
403. Earlier landmarks of the literature include MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY (1986);
404. MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICALANALYSIS (1981);
405. and STONE, supra note 43.
406. See, e.g., DAMAŠKA, supra note 239 (contrasting "hierarchical" and "coordinate" forms of judicial organization, and correlating them with "policy-implementing" and "conflict-solving" modes of judicial decisionmaking, respectively);
407. HILBINK, supra note 69 (arguing that "an autonomous bureaucratic structure, which is supposed to insulate the judiciary from politics, tends to reproduce conservatism and conformity");
408. RAMSEYER & RASMUSEN, supra note 44 (attributing the ideological conformity and conservatism of the Japanese judiciary to its abundance of hierarchical disciplinary mechanisms).