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

72 Pages Posted: 23 Aug 2007  

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

Date Written: 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).

Keywords: judiciary, elected judges, appointed judges

Suggested Citation

Choi, Stephen J. and Gulati, G. Mitu and Posner, Eric A., Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (August 2007). U of Chicago Law & Economics, Olin Working Paper No. 357; 2nd Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=1008989 or http://dx.doi.org/10.2139/ssrn.1008989

Stephen J. Choi

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Gaurang Mitu Gulati

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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