When choosing justices on the one hand you want to choose them meritocratically and on the other hand, you want that the views of the population are well represented.
For justices in lower courts who are just supposed to rule in the way the higher courts would, you can just pick them meritocratically without problems if the higher courts are selected in a way that represents the view of the population.
I disagree. Blindness is the main attribute of Justice. Rawls and the Romans were right. Meritocracy is nice at the gates of the career, but how do you measure merit among the chief justices? Any mechanism different from the lottery will become a battlefield.
Moreover, I don’t believe in merit among the experienced Justices. Law is not like chess or Physics. It is about consensus, and intuitiveness. There is not a real object to be discovered by the jurisconsult, but a mix of system, continuity, social agreement, and a bit of game theoretical intuitions. Who is the “best” at that?
Regarding the views of the population, I am for judicial review by the legislature, but not in the late stages of the career, because the closer to the high court is the political intervention, the higher becomes the risk of capture.
When speaking about “merit” of judges, the useful for what that means in practice.
For low-level judges, that often means exam scores. In merit-based systems, you need good exam scores to become a judge.
For experienced judges you can measure merit by how much of their judgements get overturned by higher courts. A judge who constantly makes judgements that get overturned is bad at seeking legal consensus.
In common law jurisdiction you could also measure how often the opinion of the judge on cases get cited by opinions from other courts.
Yes, there are some measures, but beware of Goodhart Law: if you over-incentive consensus, you get herd behaviour. Many “consensus building” mechanisms end producing the same kind of problems as “peer review”: conformity, statu quo bias, and above all, guild mentality. In Law, external measures of goodness (that counterbalance statu quo bias) are even more difficult to create than in academy...
But even if you think that more can be done, what do you think as its use to create “expert panels” including the Supreme Court?
It looks so natural that it is increíble that Sortition (among professional justices) for High Courts is not universal.
When choosing justices on the one hand you want to choose them meritocratically and on the other hand, you want that the views of the population are well represented.
For justices in lower courts who are just supposed to rule in the way the higher courts would, you can just pick them meritocratically without problems if the higher courts are selected in a way that represents the view of the population.
I disagree. Blindness is the main attribute of Justice. Rawls and the Romans were right. Meritocracy is nice at the gates of the career, but how do you measure merit among the chief justices? Any mechanism different from the lottery will become a battlefield.
Moreover, I don’t believe in merit among the experienced Justices. Law is not like chess or Physics. It is about consensus, and intuitiveness. There is not a real object to be discovered by the jurisconsult, but a mix of system, continuity, social agreement, and a bit of game theoretical intuitions. Who is the “best” at that?
Regarding the views of the population, I am for judicial review by the legislature, but not in the late stages of the career, because the closer to the high court is the political intervention, the higher becomes the risk of capture.
When speaking about “merit” of judges, the useful for what that means in practice.
For low-level judges, that often means exam scores. In merit-based systems, you need good exam scores to become a judge.
For experienced judges you can measure merit by how much of their judgements get overturned by higher courts. A judge who constantly makes judgements that get overturned is bad at seeking legal consensus.
In common law jurisdiction you could also measure how often the opinion of the judge on cases get cited by opinions from other courts.
Yes, there are some measures, but beware of Goodhart Law: if you over-incentive consensus, you get herd behaviour. Many “consensus building” mechanisms end producing the same kind of problems as “peer review”: conformity, statu quo bias, and above all, guild mentality. In Law, external measures of goodness (that counterbalance statu quo bias) are even more difficult to create than in academy...
https://www.palladiummag.com/2024/08/02/the-academic-culture-of-fraud/
Sure, I think your proposal is a great idea.