Federal and State Judicial Selection in an Interest Group Perspective

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, 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