JUDICIAL RECRUITMENT AND PROMOTION:RESPONSES TO PROFESSORS RAMSEYER ANDREPETA
SHIN-ICHI NISHIKAWA∗COMMENTS ON PROFESSOR RAMSEYER’S ARTICLE, DO SCHOOL CLIQUESDOMINATE JAPANESE BUREAUCRACIES? EVIDENCE FROM SUPREME COURTAPPOINTMENTS
On September 11, 2010, I received an e-mail from a graduate of myseminar. He passed the entrance examination to the Shiho Kensyujo (LegalTraining and Research Institute, or LTRI). The Ministry of Justice(Homusho) had announced the results two days prior. He and I are bothgraduates of Meiji University. Because of Professor Ramseyer’s Article,1 I
will not advise the graduate to be a judge.2 I do not think that he could beon his way up the ladder as a judge. He did not attend the University ofTokyo.
Recently, I published my book Saibankan Kambujinji no Kenkyu(Research on Personnel Management of Senior Judges in Japan).3 In thisbook, I pointed out that many judges who attended the University ofTokyo have served as chief judges of the district courts, family courts, orboth, and have become presidents of the high courts.4 The ratio is 18.0%.5
In the case of judges who graduated from private universities, however,
the ratio is just 2.1%.6 In my book, I could not explain this gap well. Had I
read Professor Ramseyer’s Article while writing my book, I would havebeen able to explain the gap more clearly.
By way of inquiry, I have three technical questions. The first is about
how to measure the productivity of judges. In the case of three-judge
panels, to whom is the productivity attributed? I think it is very difficult to∗ Professor of Political Science, Meiji University.
1. J. Mark Ramseyer, Do School Cliques Dominate Japanese Bureaucracies? Evidence fromSupreme Court Appointments, 88 WASH. U. L. REV. 1681(2011).
2. I was especially surprised by Professor Ramseyer’s findings regarding the very highproductivity of the men named to the Supreme Court, most of whom attended the University of Tokyo.
See id. at 1694-95.
3. SHIN-ICHI NISHIKAWA, SAIBANKAN KAMBUJINJI NO KENKYU [RESEARCH ON PERSONNELMANAGEMENT OF SENIOR JUDGES IN JAPAN] (2010).
4. Id. at 71.
5. Id.
6. Id.

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measure the productivity of each judge in a three-judge panel, unlike
single-authored cases. It is true that Machida Akira, a former chief justiceof the Supreme Court of Japan, published massive numbers of opinionsfrom 1962 to 1965.7 He was not, however, the most senior judge on hispanel in those days because he was not a full judge.8
The next question is about how to determine the rate of failure on theentrance examination for the LTRI. From Zensaibankan Keireki Soran
(Career Data on All Judges, or ZSKS), we know data such as judges’ birthdates, but we cannot ascertain the number of times a judge failed theentrance examination for the LTRI. Some judges might have failed theentrance examination for college. If a judge got into college after failingthe exam on his or her first attempt, we must deduct the number ofadditional attempts on the college entrance exam from the number of times
the judge failed the entrance examination to the LTRI.
Similarly, some judges might have repeated the same year while atcollege. For example, Eda Satsuki, a former judge and ex-president of theHouse of Councilors, repeated the same year twice. 9 He passed theentrance examination to the LTRI, however, on his first attempt. Therefore,
we cannot always correctly estimate the number of times a judge failed theLTRI entrance examination from his year of birth.
The third question is also related to ZSKS. There are several blanks inthe alma maters category in ZSKS. In other words, there are a lot of judges
whose alma maters are not listed in ZSKS. I counted the blanks of theLTRI classes of 1959 to 1961, and there are 79 blanks in this period.10 Of
course, the implications of this number should not be neglected. The
number is about thirty percent of the total number of the LTRI classes of1959 to 1961.11 Out of those 79 judges, some may be graduates of theUniversity of Tokyo or Kyoto University.
In any case, thanks to Professor Ramseyer’s Article, I realized how
significant productivity actually is and how wrong my assumptions aboutuniversity pedigree truly were.

7. Ramseyer, supra note 1, at 1694.
8. ZENSAIBANKAN KEIREKI SORAN [CAREER DATA ON ALL JUDGES] 100 (5th ed. 2010)[hereinafter ZSKS].
9. See EDA SATSUKI, http://www.eda-jp.com (last visited May 2, 2011).
10. ZSKS, supra note 8, at 84–101.
11. Id.

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DECISION MAKING ON THE JAPANESE SUPREME COURT

3

COMMENTS ON PROFESSOR REPETA’S ARTICLE, RESERVED SEATS ON
JAPAN’S SUPREME COURTI wrote my Article Saikosai no Rutsu wo Saguru (How Was theJapanese Supreme Court Created After World War II?) two years ago.12
The objective of my Article was similar to that of Professor Repeta’s,13and thus I found his Article very interesting. His Article revealed that I
had overlooked the importance of attorneys in my Article. I neglected theAttorneys Act, and I took the process of appointing attorneys to theSupreme Court lightly. I only paid attention to the conflict among theHosono group, the Ministry of Justice (Shihosho), and occupation officials.
After reading Professor Repeta’s Article, I also understood that it wasvery important for attorneys to be appointed justices of the Supreme Court.
It was vital for the democratization of Japan, and it was also very
interesting for the Supreme Court and the executive branch to have
opposed passage of the Attorneys Act.14
I think that the Advisory Committee for Appointing Justices of theSupreme Court (Saibankan Nimmei Shimon Iinkai) was very significant,primarily because the committee produced a list of candidates. At first, thecommittee proposed by Shihosho had only one attorney as a member.15
Then, the committee established by the Yoshida Cabinet had threeattorneys.16 The Katayama Cabinet, however, established a committee offifteen members including four attorneys;17 the number of attorneys on thecommmittee was increasing.
Of course, the more attorneys the committee has, the more attorney
candidates it selects. Shihosho did not show disagreement toward theincrease of attorneys, and I do not know why. It is possible that Shihosho
was too busy negotiating with the Hosono group and occupation officials.
Or Shihosho might have considered that all attorneys had a similar way ofthinking. As Professor Repeta pointed out, every attorney had been trained
under a constitutional order that denied the primacy of individual rights.18As a result, the advisory committee of the Katayama Cabinet selected

12. Shin-ichi Nishikawa, Saikosai no Rutsu wo Saguru [How Was the Japanese Supreme Court
Created After World War II?], 78 SEIKEI RONSO 1–82 (2009).
13. Lawrence Repeta, Reserved Seats on Japan’s Supreme Court, 88 WASH. U. L. REV. 1713
(2011).
14. Id. at 1715.
15. Nishikawa, supra note 12, at 35.
16. Id. at 39–40.
17. Id. at 48–49.
18. Repeta, supra note 13, at 1716.

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eleven attorneys, ten career judges, and nine intellectuals as candidates.19
In addition, this Article refers to the voting process by judges to selecttheir representatives to the advisory committee at the Katayama Cabinet.20
At that time, attorneys also selected their representatives by voting. I am
interested in this process as well. It is my task, and also possibly Professor
Repeta’s, to make the process more clearer.

19. Nishikawa, supra note 12, at 56.
20. Repeta, supra note 13, at 1718.