Tuesday, March 4, 2008

Comparing Elected and Appointed Judges

What difference does it make whether a state appoints its judges, elects them, or has some system in between? A team of researchers examined the opinions of states' highest courts from 1998-2000 and tried to come up with measurements that would say something about quality. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary, U of Chicago Law & Economics, Olin Working Paper No. 357 (Aug. 2007), available at SSRN: http://ssrn.com/abstract=1008989.

Here are the measures they tried:

  • Quantity - number of opinions (including dissents and concurrences. Elected judges wrote more than appointed judges.
  • Citations to opinions by courts from other jurisdictions. Appointed judges were cited more. (But see the recent study by Dear and Jessen, who found that our (elected) Washington Supreme Court was the second most influential in the country. Dear and Jessen looked at citations following an opinion, not just citations.)
  • Independence - measured by how often a judge wrote an opinion contrary to a judge of the same or different party. Elected judges are more likely to dissent than appointed judges, and they're fine dissenting against a judge of the same party.
    • I wondered what they did for states (like ours) whose judges are elected in nonpartisan elections. The answer: they did some digging.
      • They searched Nexis for news stories about the judges.
      • If the judges had at one point been appointed and, if so, they looked at the party of the governor who appointed them.
      • They checked for campaign contributions, deeming a judge who contributed to partisan campaigns to be of the same party as the candidates supported.
Here's the 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).

Graphic from the Wyoming Secretary of State's page with 2002 election results. It's not about electing judges specifically, but it's a cute graphic.

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