We continue our discussion of “bayesian voting” in this blog post. Previously, we conceded that bayesian voting is more complicated than simple majority voting (one-judge, one-vote), but we went on to argue that bayesian voting would be easy to operationalize or put into practice. Here, we consider another objection against bayesian voting. Simply put, the objection is that we cannot aggregate a group of bayesian votes together because each judge’s bayesian vote (his degree of belief in the proper outcome of a case) is subjective. Put another way, each judge’s criteria for scoring a case would vary, depending on the judge. We will make three points in reply:
1. First and foremost, so what? After all, even with simple majority voting, each judge’s vote is already subjective. In many cases (especially contested cases involving issues of constitutional law), judges can have different judicial philosophies and often employ different criteria when deciding such cases.
2. In any case (pun intended), subjectivity won’t be such a big deal to the extent judges are using the same sliding scale (0 to 1) to score their credences and to the extent most judges share similar backgrounds and similar professional training.
3. Bayesian voting has the additional virtue of allowing judges to effectively abstain from voting (without having to recuse themselves) by assigning a score of 0.5 to their credences (again, assuming we are using a standard 0 to 1 point scale). If a case is close (i.e. if the arguments on both sides are equally persuasive), judges should have the ability to openly admit such closeness.