As our discussion in Chapter 6 makes clear, how judges are selected shapes the power dynamics of the judicial tug of war. This makes judicial selection itself a source of heated conflict, the subject we take up in Chapter 7. We use our judicial tug-of-war framework to explore how the parties respond or try to change existing judicial selection mechanisms. Specifically, as we show, the greater the misalignment between the ideological preferences of attorneys and politicians, the greater the incentives political elites will have to introduce ideological considerations into the judicial selection process. Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform: Under current ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, back reform efforts oriented toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. We explore the contours of this predictive framework with three illustrative case studies: Florida in 2001, Kansas in 2011, and North Carolina in 2016.

Federal courts only represent one kind of selection mechanism – appointment by the executive with the advice and consent of a legislative chamber. Because selection mechanisms vary across different jurisdictions, Chapter 6 explores how patterns may vary with regard to state courts. Indeed, part of our overall argument is that different selection mechanisms can both restrain and facilitate the incorporation of politics into judicial selection. As we show, appointments systems – like the appointments process used to name federal judges – are more sensitive to the needs and preferences of the political parties; by contrast, systems that lean toward merit-oriented criteria – including systems that are reliant on merit commissions, nonpartisan bodies, and local and state bar associations – are more sensitive to the needs and preferences of the bar. Thus, given the tension between political actors and the bar that characterizes the judicial tug of war, certain judicial selection systems may (or may not) be favorable to the different players. In other words, judicial selection mechanisms set the rules by which the tug of war is played.