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.
78 S. CAL. L. REV. 137 (2004)