Who should be selected to the highest court and how? Evidence from comparative survey experiments

What are citizens’ attitudes towards the selection of justices to Supreme and Constitutional Courts regarding the institutional process and individual traits of candidates? While justices to highest courts are not publicly elected, their legitimacy depends on how contentious the change of personnel is perceived and who will be selected. Perceived legitimacy matters a great deal because highest courts frequently make decisions with political implications and use their public support as currency to make politicians implementing their decisions. We are the first to provide systematic comparative evidence regarding the public’s preferred selection process as well as the “ideal” candidate for the bench using a most different systems design. To do so we conducted a discrete choice experiment embedded in high-quality panel survey instruments in France and Germany. Respondents were asked to choose between randomized characteristics of hypothetical candidates and selection processes. Additionally, we reevaluate data from similar survey experiments conducted in the United States. Our results identify a seemingly common normative ideal that citizens have in mind with regard to the institutional selection and the characteristics of justices they prefer to be selected to highest courts. Citizens prefer professional judicial experts who are selected by parliament or by non-political experts rather than the executive branch. These results have a number of theoretical implications for our understanding of how to protect courts institutionally against court curbing efforts to diminish their power and independence and also some practical implications for ongoing reform discussions; i.e., in the United States.