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).
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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.
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.
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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I think when the statistics were measured that the results tended in favor for appointed officials. Why? The abstract suggests the question should be “Are appointed judges working at a higher level?” That is not the real question here. If we use measures to gage purely transactional case loads, then places like Texas with no sense of judicial efficiency would have been outliers in this study’s analysis. The question should be how closely do the decisionmakers follow the letter and spirit of the law — providing justice for all citizens. Look at Texas, for instance, with an overloaded court system and elected judges and district attorneys. In order to be re-elected, judges must show numerically how many criminals they have put away in a physical jail. I know of one case where an honors law student did not know she had a physical disability (epilepsy) and was booked on DUI charges when she could not respond at a traffic stop. The strobe lights caused her to have a seizure. There was no footage at the scene, the file is missing from the District Attorney’s office, no blood or breath samples exist, and the case was heard on political grounds. She was too “open” according to the Prosecutor, meaning another former judge knew about the incident before her family did even. It becomes political to the point that young people with better credentials than those running for offices in small Texas towns are intentionally harmed. They are a threat to small-town lawyers from non-reputable law schools and small-town folk who think of minor metropolitan areas as meccas. The woman was asked for $5,000 from the judge who knew about the incident to “represent” her. The DA heard the case. Before the trial, the judge hearing the case had dinner with the other judge presenting the case. The woman has plenty of evidence of abnormal EEG’s, scars from a childhood accident involving severe brain trauma, and the case was still heard, because the woman was “too open.” I’m not sure if this study uses the correct measures or looked at Texas, which appears to be lacking in considerations of judicial efficiency, something a professional would consider. Let’s disbar and not elect Judge Karen Crouch, former Judge Wayne Christian, and District Attorney Susan Reed while we are at it.
Who takes a DUI case to trial with no physical evidence, even if the DA heard it, and does not present medical evidence, which would not have been in violation of Texas Rules of Evidence? Where’s the file? How did a former county court judge know about the incident before the woman disclosed it to anyone? I have never heard of someone being booked on charges and being contacted the next day by former criminal court judges asking for money. This isn’t justice, it’s “Dallas.”