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Southern California Law Review


In this invited response to Stephen Choi & Mitu Gulati, "Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance," 78 S. CAL. L. REV. 23, 30 (2004), I analyze the central normative assumptions underlying Choi and Gulati’s "Tournament of Judges." To that end, I explore the concept of "merit" as it applies to the selection of individuals for important institutional positions. I suggest that an ascription of merit can be understood to entail a claim that an individual exemplifies the aptitudes, excellences, and virtues of a particular office or position. I argue that merit in this sense does not give rise to a right to be selected, and that the selection of a candidate who is not the most "meritorious" in the descriptive sense might nevertheless be justified, if supported by other values and principles implied by our institutional commitments.

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Creative Commons Attribution-NonCommercial 4.0 International License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License



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