Stephen Choi and Mitu Gulati have a novel proposal for how to avoid partisan bickering over judicial appointments.

We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public’s confidence in the objectivity of justices selected through such a partisan process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate’s “merit”-casting a taint on all those who make their way through the judicial nomination process. We argue that the benefits from introducing more (and objective) competition among judges are potentially significant and the likely damage to judicial independence negligible. Among the criteria that could be used are opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, speed of disposition of cases, reversal rates by en banc panels and the Court, and so on. Where political motivations drive the selection of an alternative candidate, our proposed system of objective criteria will make it more likely that such motivations are made transparent to the public. Just as important, a judicial tournament for selection to the Supreme Court will serve not only to select effective justices, but also to provide incentives to existing judges to exert effort.

I don’t think this is going to eliminate partisan bickering as much as relocate it from Congress (where it belongs) to the pages of judicial decisions and legal journals (where it does not). While some of the criteria are somewhat immune to manipulation, many are not. (As has been noted by several learned commentators including most members of the Brown philosophy department, my PhD supervisor, a few guys I was drinking with Monday night, the referees for this journal and every Democratic judicial appointee in Rhode Island since the Lincoln administration.)

UPDATE: Lawrence Solum has a much more detailed entry on this proposal that considers fairly carefully what judicial actions would be rewarded and punished by this kind of tournament. He ends up liking the paper, though definitely not the tournament. He is also much more generous than I, though that could be a matter of style. As he says, “the general style of Legal Theory blog is to be nice.” I don’t think TAR has a general style, but if it has, nice is not it.