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Who Do They Think They Are

There is a potential collision at the intersection of two axes of inquiry. One axis is the seemingly endless debate over how judges are best selected for office. The other is the question how they perform their judicial function, and especially how they believe they do so, once they get into office. The antipodal positions on the first axis are the ABA’s recommended non-political "commission-based appointive system" on the one hand and full-bore partisan political campaigns, as advocated by some, on the other. One view along the judicial-performance axis is that, as Chief Justice Roberts put it during his confirmation hearings, judges are neutral "umpires, call[ing] balls and strikes." The view from the other end is that, as the so-called "attitudinalists" see it, judges act as largely unconstrained policymakers: they are not umpires, they are players. Intermediate points on this axis regard judges as taking seriously their commitment to law-adherence, but as influenced within the bounds of what reasonable argument will sustain by their own policy preferences. Drawing on research into cognitive psychology, this paper describes how judicial-selection methods may affect judges’ own perceptions of their role, which in turn may affect their execution of that role with potential consequences for the rule of law.