Are Appointed Judges Better Than Elected Judges?

Everyone assumes that the answer is yes, but the evidence suggests (maybe) otherwise.  See this paper, and the abstract below.

Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary

STEPHEN J. CHOI New York University - School of Law G. MITU GULATI Duke University - School of Law ERIC A. POSNER University of Chicago Law School; University of Chicago Press August 2007

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).

Comments

[Alex]

Based on the abstract provided the conclusions seem the mirror opposite of the evidential claims, it certainly seems difficult to argue that acting as a professional is not desirable to acting as a politician.

[LAK]

Seriously. And the number of written opinions matters why? And the number of opions can offset quailty because (admittedly I haven't read the paper,but if someone does, feel free to enlighten me).Methinks I smell a paper motivated by politics and special interests who love nothing more than to be able to buy Judges. State Farm anyone?

[Leif]

Because if you're writing 50% more opinions but your quality drops off by only 10%, it suggests that the difference in quality is caused not by the lack of competence, professionalism, wisdom, or intelligence of the state court judges, but by the sheer number of opinions state court judges write.

[LAK]

What was the measure of "quality," I wonder, and what would make one think that there is some kind of inverse relationship between quality and quantity? Serving voters should not be something that a judge aspires to. Serving the rule of law is. I find the purpose and method of this paper to be unsettling.

[Zoe]

Serving voters should not be something that a judge aspires to. Serving the rule of law is.

That's a little silly. People have issues they want addressed by the courts. Courts provide remedies and redress. I would imagine more criminal appeals result if there are more trials of actual criminals. And I would imagine safer citizens are happy about it.

[LAK]

Hamilton is rolling in his grave:

http://www.foundingfathers.info/federalistpapers/fed78.htm

[Alex]

And what if the voters want something that is illegal, is it the judges responsibility to support that for fear of not being elected?

[vam]

corporations and other business organizations, which comprise a huge portion of litigants on both the plaintiff and defense sides, are not voters.

[LAK]

Ah, but they fund the political action commitees that influence how the public votes, a public which know absolutely nothing about law and judges they vote for. State Farm gave Judge Karmeier of the Illinois Supreme Court $350,000 in campaign donations directly and god knows how much more funneled through other individuals and groups. This was for a downstate seat, mind you, so these are big dollars.

Whether corporations can vote or not is not the issue. Whether they can influence elections is. And they can.

[Nic Cruickshank]

but what of the problems with appointed judges ? Look to places like Canada and eurpoe where judges can and are appointed often these individuals are engendered to the ruling political class that appointed them. corruption in favour of political power I find more troubling than corruption in favour of the masses. If a judge does something unethical to please the masses is that not at least less of a transgression than a judge unethically making rulings that favour the group that gave him power ? Either route is capable of being corrupted and influenced but I think the least vulnerable is the elected judge. at least the elected judge has a shorter time to serve and is under more scrutiny.

[LAK]

Art. III judges, and every appointed judge as far as I know, can be removed for cause. The people still have the ultimate say...

[Nic Cruickshank]

sorry I'm Canadian and we the public in the great former Dominion of Canada do not have that power. I can't speak for every Euro nation in this respect but I can for Canada. We here have no say and judges tend to follow the political stripes of who hired them even in the face of 1)public outcry and 2)defiance of our "constitution" to fit the judges politics. You Yankees may have some control over oustering an appointed judge but that is why your system is, for all of it's faults superior. that is why I support reforms in Canada to elect judges. I don't want new judges to be liberal or conservative I want them to apply the law, even when it is counter to one's personal beliefs.

[Catapult]

I'm disappointed that the paper did not look at "hybrid" systems for judicial selection: for instance, in some jurisdictions -- I recall reading that Colorado had a system like this -- state judges (at the district, appellate, and Supreme Court levels) are initially appointed by the governor for a two-year probationary term but then "stand" for retention on the ballot thereafter. There are no opponents -- id est, an individual cannot "challenge" a sitting judge in an open election. Rather, if the judge is not retained, a replacement appointment is made and the process repeats.
This scheme escapes the intrinsic pitfalls of having the judiciary politicized by partisan elections where candidates are pressured to raise campaign funds (often from the very attorneys, lobbyists, corporations, and individuals). Instead, sitting judges feel enough indirect political pressure to not fall out of favor with the electorate so much that they are "voted out" (id est, not retained). That system sounds better to me than the raw politics of judicial elections that occur in places like Texas, which, for those of you who must be reminded, had none other than Alberto Gonzales on its state supreme court.

[Leif]

Al Gonzales was appointed to the Texas Supreme Court, so -- nice try with that.

[John Paul Parks]

The difference between elected and appointed judges: in the former case, the politicking is out in the open. In the latter, it goes on behind closed doors. Where would you rather have the politicking occur?

While there might be exceptions, as a general rule, an elected judge has a greater opportunity to be independent. Only a lawyer can challenge him, and most lawyers will think long and hard about challenging a sitting judge before whom they practice, because if he runs and loses, it will have a devastating effect on his career. This fact alone protects the judge from non-meritorious election challenges, and normally permits the judge to be re-elected without opposition.