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

Published date01 December 2021
Date01 December 2021
DOIhttp://doi.org/10.1177/1065912920971712
Subject MatterArticles
2021, Vol. 74(4) 1152 –1167
https://doi.org/10.1177/1065912920971712
Political Research Quarterly
© 2020 University of Utah
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DOI: 10.1177/1065912920971712
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Introduction
Both scholars and practitioners express expectations that
judicial selection institutions can shape the quality and
characteristics of judges selected to the bench, and a
growing literature addresses how different selection insti-
tutions shape prospects for gender or racial diversity in
the judiciary (Alozie 1990; Bratton and Spill 2002;
Hurwitz and Lanier 2003; Reddick, Nelson, and Caufield
2010). Merit selection—in particular—has garnered sub-
stantial attention for the ways in which it may (or may
not) promote diversity in the judiciary.1 Typically under
merit selection procedures, a merit commission of several
individuals accepts applications and seeks candidates for
a vacancy. The commission then generates a short list of
candidates from which the executive chooses a judge to
fill the vacancy.2
Merit selection was famously employed by President
Carter for the selection of lower level federal courts.3 As
Berkson, Carbon, and Neff (1979, 105) explain, President
Carter had two goals when he established the U.S. Circuit
Court Judge Nominating Commission: selecting judges
based on professional merit and rectifying the historic
exclusion of women and minority judges by actively
seeking out those candidates for the bench. Carter’s goal
of diversifying the federal judiciary was successful.4
Of the 262 judges Carter appointed to district and circuit
courts, 15 percent were women and 15 percent were
Black, Hispanic, or Latino (Solberg and Bratton 2005;
Walker and Barrow 1985), a record-breaking level of
diversity at the time (Babcock 1980).
Proponents of merit selection argue that members of
the nominating commission focus on the qualifications
of judges rather than on political or personal criteria or
one’s networks of connection. This focus on qualifica-
tions serves to decrease opportunities for discrimination
and other impediments to the selection of women and
minorities (Martin 1981). As Justice Ginsburg explains,
women and minority candidates were more successful
under the Carter administration due to his emphasis on
merit rather than the “‘old boys’ network” (Ginsburg and
Brill 1995, 288).
Consistent with President Carter’s use of the merit
system and subsequent diversification of the federal
judiciary, many observers expressed optimism that merit
971712
PRQXXX10.1177/1065912920971712Political Research QuarterlyArrington
research-article2020
1California Polytechnic State University, San Luis Obispo, USA
Corresponding Author:
Nancy B. Arrington, California Polytechnic State University, Building
47, Rm. 14, 1 Grand Avenue, San Luis Obispo, CA 93407-0329, USA.
Email: naarring@calpoly.edu
Judicial Merit Selection: Beliefs about
Fairness and the Undermining of
Gender Diversity on the Bench
Nancy B. Arrington1
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.
Keywords
judicial selection, gender diversity, merit selection, survey experiment
Article
Arrington 1153
2 Political Research Quarterly 00(0)
selection procedures would necessarily promote diver-
sity on the bench more generally (Clark 2002; Crompton
2001). Indeed, Norman Krivosha, the chief justice of the
Nebraska Supreme Court from 1978 to 1987, writes
“there is no question but that the merit selection system
affords greater opportunities for women and minorities
to find their way to the bench” (Krivosha 1987, 19).5
However, the belief that merit selection procedures
would be net beneficial for the selection of women judges
has not been borne out in the several decades since
Carter’s use of merit selection to diversify the federal
judiciary (Goldstein 2006). Merit selection did not accel-
erate the selection of the first woman justice to state
supreme courts (Goelzhauser 2011)6 nor is merit selec-
tion associated with a greater proportion of women judges
on the bench (Reddick, Nelson, and Caufield 2010).
Indeed, some research suggests that merit selection dis-
advantages women at the nomination stage (Goelzhauser
2018b, 2019).
Why has enthusiasm for gender diversification under
merit selection not been realized? Applying theories of
procedural fairness and legitimacy to judicial selection, I
argue that observers’ beliefs in the procedural fairness of
merit selection procedures leads them to be less critical of
suboptimal outcomes, including gender homogeneity on
the bench. This acquiescence, in turn, may allow the
exclusion of women to persist unpunished under merit
selection procedures. I test this expectation using survey
experimental evidence. Comparing a merit selection pro-
cedure with a unilateral, gubernatorial selection proce-
dure, I find that respondents perceive merit selection
procedures as, a priori, more fair (this pattern persists
even when merit selection is referred to as the less-
leading “committee-assisted selection”). Consistent with
expectations, I then find that respondents are less critical
of gender homogeneity under merit selection procedures
relative to gubernatorial selection procedures. In other
words, there is a counterintuitive drawback to imple-
menting institutional changes that are championed as
more fair or more trustworthy: observers’ beliefs in pro-
cedural fairness encourages acquiescence to otherwise
problematic outcomes. These findings offer (or confirm)
several lessons, including the idea that (1) institutional
design can have unintended consequences, (2) selection
institutions matter for gender diversification in the judi-
ciary, and (3) procedural fairness can obscure account-
ability for suboptimal outcomes.
The rest of the article proceeds as follows: first, I outline
existing literature about the role of selection institutions in
the judiciary and on the selection of women. Then, I turn to
procedural fairness and describe how citizens’ beliefs in the
fairness of institutions can undermine prospects for judicial
diversity. Finally, I detail two survey experiments used to
test whether and how merit selection may undermine gen-
der diversity in the judiciary. I conclude with a discussion of
the ways in which this study informs broader understand-
ings of gender diversification and institutional design.
The Effects of Judicial Selection
Procedures
Debates about the best way to select judges to promote
various outcomes have a long tradition, both globally
and in the United States. In the U.S. context, for exam-
ple, Alexander Hamilton advocated for judicial indepen-
dence while Thomas Jefferson prioritized judicial
accountability (Nejelski 1981; Webster 1995). More
recently, scholars have addressed whether and how dif-
ferent selection institutions affect the quality of judicial
qualifications (Cann 2006; Goelzhauser 2016) and judi-
cial performance (Brace and Boyea 2008; Bright and
Keenan 1995; Choi, Gulati, and Posner 2010; Hall 1992;
Huber and Gordon 2004).
Importantly for the purposes of this project, a robust
literature addresses how selection systems may shape
prospects for gender diversity on the bench. Evidence,
though, is mixed. Some argue that the concentration of
accountability on the executive (Bratton and Spill 2002;
Carbon, Houlden, and Berkson 1982; Goelzhauser 2016;
Williams and Thames 2008) or the electoral exposure of
judicial selectors (Valdini and Shortell 2016) leads to the
increased selection of women. Judicial elections, like-
wise, do not systematically exclude women from office
(Frederick and Streb 2008; Reid 2004a), and may actu-
ally provide women an advantage when they are chal-
lengers (Gill and Eugenis 2019). Other factors such as the
timing of judicial turnover may have consequences for
the diversification of the judiciary too (Arrington 2020).
However, many find no effect of formal selection proce-
dures on gender diversity in the judiciary (Alozie 1988,
1990; Hurwitz and Lanier 2003, 2008; Slotnick 1984).7
When it comes to the effect of merit selection proce-
dures—in particular—on gender diversity, the empirical
evidence is bleak. Williams (2007) finds no relationship
between merit selection procedures and women’s repre-
sentation at the state trial court level but finds a negative
relationship between the two for state appellate courts, a
finding mostly confirmed by Reddick, Nelson, and
Caufield (2010) who find that merit selection has no
effect on the selection of women to state high courts or
trial courts but is negatively associated with the selec-
tion of women judges to intermediate state appellate
courts. At the state supreme court level, merit selection
not only failed to accelerate the selection of the first
women justices (Goelzhauser 2011), but may disadvan-
tage women candidates at the commission nomination
stage (Goelzhauser 2018b, 2019).8
As a whole, the literature suggests that selection
institutions play a limited role in judicial diversity
(Goelzhauser 2016). In the context of the U.S. state

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