What method of judicial selection produces the “best” judges? And how do we determine who are the “best” judges? Stephen J. Choi (NYU Law), G. Mitu Gulati (Duke Law), and Eric A. Posner (University of Chicago Law) endeavor to answer these questions in their recent paper, “Professionals or Politicians: The Uncertain Empirical Case For An Elected Rather Than An Appointed Judiciary.” They take an empirical look at how differently selected judges rate on effort, skill, and independence aspects of judicial performance. As you might discern from the title, which judges perform “best” largely turns on what virtues you are looking for in a judge. (Hat tip to the University of Chicago Law Faculty Blog). The full abstract after the jump.
Abstract
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).
3 responses so far ↓
cwbonneau // September 9, 2007 at 2:12 am
Honestly, I am not surprised. The anti-election forces have been making unsubstantiated claims for years. And yet … just about every empirical study has shown their objections to be without empirical foundation.
bulldog20 // September 10, 2007 at 1:41 pm
if anyone remembers the ugly ugly judicial election in GA, i think in 2006, may wish for appointed. While there are good reasons to kick out the bums sometimes… politicizing the judicial like it has been in recent years seems like we are headed down a very slippery slope.
cwbonneau // September 10, 2007 at 4:15 pm
The judicial branch has always been political. With elections, judges have to be accountable to the electorate rather than the elite. There are good arguments to be made on either side–but let’s not pretend that the judiciary is not politicized simply because judges are appointed.
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