Judicial recruitment and promotion: responses to professors Ramseyer and Repeta.

• Author: Nishikawa, Shin-Ichi
• Position: Articles by J. Mark Ramseyer and Lawrence Repeta in this issue, p. 1681, 1713 - Symposium: Decision Making on the Japanese Supreme Court

COMMENTS ON PROFESSOR RAMSEYER'S ARTICLE, DO SCHOOL CLIQUES DOMINATE JAPANESE BUREAUCRACIES? EVIDENCE FROM SUPREME COURT APPOINTMENTS

On September 11, 2010, I received an e-mail from a graduate of my seminar. He passed the entrance examination to the Shiho Kensyujo (Legal Training and Research Institute, or LTRI). The Ministry of Justice (Homusho) had announced the results two days prior. He and I are both graduates of Meiji University. Because of Professor Ramseyer's Article, (1) I will not advise the graduate to be a judge. (2) I do not think that he could be on his way up the ladder as a judge. He did not attend the University of Tokyo.

Recently, I published my book Saibankan Kambujinji no Kenkyu (Research on Personnel Management of Senior Judges in Japan). (3) In this book, I pointed out that many judges who attended the University of Tokyo have served as chief judges of the district courts, family courts, or both, and have become presidents of the high courts. (4) The ratio is 18.0%. (5) In the case of judges who graduated from private universities, however, the ratio is just 2.1%. (6) In my book, I could not explain this gap well. Had I read Professor Ramseyer's Article while writing my book, I would have been able to explain the gap more clearly.

By way of inquiry, I have three technical questions. The first is about how to measure the productivity of judges. In the case of three-judge panels, to whom is the productivity attributed? I think it is very difficult to measure the productivity of each judge in a three-judge panel, unlike single-authored cases. It is true that Machida Akira, a former chief justice of the Supreme Court of Japan, published massive numbers of opinions from 1962 to 1965. (7) He was not, however, the most senior judge on his panel in those days because he was not a full judge. (8)

The next question is about how to determine the rate of failure on the entrance examination for the LTRI. From Zensaibankan Keireki Soran (Career Data on All Judges, or ZSKS), we know data such as judges' birth dates, but we cannot ascertain the number of times a judge failed the entrance examination for the LTRI. Some judges might have failed the entrance examination for college. If a judge got into college after failing the exam on his or her first attempt, we must deduct the number of additional attempts on the college entrance exam from the number of times the judge failed the entrance examination to the LTRI.

Similarly, some...