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
U of Chicago Law & Economics, Olin Working Paper No. 357
2nd Annual Conference on Empirical Legal Studies Paper
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).
Number of Pages in PDF File: 72
Keywords: judiciary, elected judges, appointed judges
Date posted: August 23, 2007
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