This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the Supreme Court. The article goes on to discuss more generally certain reservations about the performance measurement approach--focusing on the importance of including political and ideological factors from a separation of powers standpoint, and on the further importance of non-quantitative factors such as collegiality and career diversity (i.e. having candidates other than appellate judges).
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Date of this Version
James J. Brudney, "Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices" (December 2004). The Ohio State University Moritz College of Law Working Paper Series. Working Paper 3.