Judicial Merit Selection: Beliefs about Fairness and the Undermining of Gender Diversity on the Bench

Abstract

Much attention is paid to how mechanisms for selecting political officials shape which types of officials hold positions of power, but selection procedures do not always produce the desired outcomes. In the context of the judiciary, many expected “merit” selection procedures to facilitate the selection of women justices to the bench, an expectation that has not been realized. Applying theories of procedural fairness to judicial selection procedures, I argue that observers’ beliefs that merit selection procedures are more “fair” (relative to unilateral selection procedures) makes observers more accepting of all-male benches. Survey experimental evidence demonstrates that respondents do perceive merit selection procedures as more fair than gubernatorial selection procedures, a priori. In turn, respondents are less critical of all-male courts when judges are selected through a merit selection procedure. These findings contribute to our understanding of the ways in which (1) selection institutions shape prospects for gender diversity, (2) institutional design can have unintended consequences, and (3) procedural fairness can obscure accountabilituy for suboptimal outcomes.