Federal and State Judicial Selection in an Interest Group Perspective
Solimine, Michael E., Gely, Rafael, Missouri Law Review
The literature on judicial selection systems has given considerable attention to the role that politicians and their parties--through their legislative roles--have played in the adoption and operation of these judicial selection systems. Less attention, however, has been given to both the effect that interest groups, broadly defined, have in the creation and implementation of judicial selection systems and the effect that these systems have on the strategies adopted by interest groups to accomplish their goals. This Article seeks to fill this gap. using the framework advanced by William M. Landes and Richard A. Posner in their seminal article on judicial independence, (1) we explore the relationships between interest groups and the functioning of judicial selection systems at both the federal and state levels.
Like that of Landes and Posner, our analysis is primarily positive. That is, we explore, from a theoretical and empirical perspective, the role of interest groups in creating judicial selection systems and influencing those systems once created. Like them, our focal point is the seeming puzzle of why legislative bodies (and their supporters among interest groups) would establish an independent and possibly competing branch of government. unlike them, we extend the analysis to consider how interest groups affect judicial selection systems once they are created. We have relatively little to say about normative issues, that is, what the implications of this interest-group behavior are on sound judicial selection. There is a large amount of literature on that point. Though our analysis may inform that discussion, we will leave that task to others.
This Article proceeds as follows. In Part II, we summarize the model advanced by Landes and Posner. In Part III, we explore some of the criticisms that have been levied against their model, while in Part IV we raise some criticisms of our own and explore how later scholarship has addressed them. Part V concludes the article.
II. LANDES AND POSNER: A BRIEF SUMMARY
In their 1975 article, Landes and Posner propose a model for understanding judicial behavior in the context of interest-group politics. (2) Their model begins by observing that, from an interest-group perspective, legislation is the result of a bidding process among groups or coalitions. (3) That is, legislatures sell and interest groups buy legislation. Payment could take a variety of forms: campaign contributions, electorate support, promises, and sometimes even illegal behavior such as bribes. (4) The price that interest groups are willing to pay for a favorable piece of legislation depends on the value of the protection they seek to receive, as well as the ability of the particular interest group to reduce free-riding problems. (5)
The value of legislation depends not only on the level of protection received but also on the expected durability of the legislative enactment. Because supporting the enactment of new legislation is expensive (for both the interest groups and the legislators themselves), the deal between legislators and interest groups will only be worth the effort if some assurances exist that the legislative deal will not be undone by future legislatures. (6) In this context, note Landes and Posner, the legislative deal needs to include not only the substantive protections sought by the interest group but also structures that limit the ability of future legislatures to change the law. It is in the interest of the enacting legislature to create such limits because they increase the value of legislation. Thus, legislators are in a position to extract higher payments from the various interest groups. (7)
Therefore, the task for legislatures is to determine the type of structures and processes that can be used to constrain future legislatures. Landes and Posner identify various possible avenues. Legislatures, they point out, could adopt procedural rules making the enactment of legislation more "difficult and time-consuming. …