authoritative power to resolve legal disputes, and in doing so they are generally
accepted as legitimate, enjoying the esteem of both the public and other govern-
ment oYcials. At the same time, there are a number of distinctive characteristics of
the judicial process that complicate the ability of courts to bring about eVective
policy change.
- 1 Judicial Selection
Both across and within countries, judges vary a good deal in the mechanisms by
which they are chosen, and diVerent methods of selection create various incentives
for judges, which do not necessarily enhance independent policy-making. In
England, for example, lower court judges are selected by the Lord Chancellor, in
consultation with local advisory boards, while appellate judges are chosen (at least
nominally) by the prime minister, who receives advice from the Lord Chancellor
and a committee for judicial appointments (Kritzer 1996 ). For quite some time,
selection was largely a function of political patronage, thus making it attractive for
judges to bring political considerations to bear in their decisions (Drewry 1993 ). In
its modern manifestation, however, it is a system that tends to place greater
emphasis on the qualiWcations of judges (GriYth 1991 ; Kritzer 1996 ).
In the United States, by contrast, the vast majority of the judiciary is elected. Most
American judges are creatures of state government, and most states opt for some form
of election for their judicial oYcials. As a result, there is little guarantee that the people
most competent to serve as judges will be selected. Indeed, voters know precious little
about candidates for judicial oYce (Klein and Baum 2001 ). Much has been made of
this apparent weakness, and since judging requiresWdelity to the law, not politics,
reformers often argue that members of the bench should be selected by some form of
independent commission that can evaluate the objective qualiWcations of potential
jurists. This, it turns out, is not as serious a limitation as critics charge, since the same
types of individuals who are disposed to be judges have fairly consistent professional
backgrounds; thus, the same sorts of people end up being chosen, regardless of the
method of selection (Glick and Emmert 1987 ). In terms of their qualiWcations, those
who are elected resemble very closely those who are appointed.
The same cannot be said, however, about their voting behavior. For those judges
who are elected, the very incentives that guide the actions of popular policy-makers
often end up motivating their decisions as well. Thus, for example, judges who are
about to stand for re-election engage in strategic behavior, frequently voting in
ways that will not alienate the electorate (Hall 1992 ). Judges are (theoretically, at
least) obligated to make decisions in light of what the rule of law dictates, and in
practice, of course, they may not be able to realize that goal. But, when elected
judges are guided by a desire to satisfy constituents, they forgo the pursuit of it.
538 kevin t. mcguire