Rethinking Judicial Selection: Insights from Harvard’s Mark Tushnet
March 5, 2025, 9:04 am CST
As the criteria for selecting judges in the United States come under scrutiny, Harvard Law professor Mark Tushnet proposes a new approach. In his latest book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory, he contends that current methods may be misaligned with the fundamental qualities necessary for effective judgeship.
Challenging Traditional Views on Judicial Evaluation
Tushnet argues that rather than relying on abstract constitutional theories, the focus should shift towards selecting judges based on their ability to exercise sound judgment. He suggests, “We should look for judges who are likely to display good judgment in their rulings… and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory.”
His examination of historical justices leads him to identify five critical attributes that he believes contribute to their success:
- Longevity and age
- Location in political time
- Prior experience in public life
- NOT A JUDGE – Tushnet emphasizes that while many feel that a judicial career is essential, some of the most impactful justices were appointed without prior judicial experience.
- Intellectual curiosity
Insights from Judicial Experience
In a recent episode of The Modern Law Library podcast, Tushnet shared his thoughts on evaluating judicial candidates, reflecting on his personal experiences as a clerk for the late Supreme Court Justice Thurgood Marshall. During this discussion, he elaborated on what characterizes a well-crafted judicial opinion and his belief that overarching theories of constitutional interpretation tend to fall short.
For those interested in exploring these ideas further, The Modern Law Library is accessible on various podcast platforms. Subscribe to stay updated on future episodes.
Listen on: Apple | Spotify | Google Play
About Mark Tushnet
Mark Tushnet is a William Nelson Cromwell law professor emeritus at Harvard Law School and a prominent figure in the field of constitutional law. His career includes a law degree from Yale and a clerkship under Justice Thurgood Marshall. Tushnet has authored numerous writings focusing on constitutional review, both in the U.S. and internationally, contributing important discourse to legal theory and history.
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