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Are Appointed Judges Strategic Too?

Joanna Shepherd

Emory University School of Law

May 5, 2009

Duke Law Journal, Vol. 58, 2009
Emory Public Law Research Paper No. 11-163
Emory Law and Economics Research Paper No. 11-109

The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers’ arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence.

Number of Pages in PDF File: 39

Keywords: judicial elections, judicial independence, law and economics

JEL Classification: K00, K40, K41

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Date posted: August 17, 2011 ; Last revised: June 6, 2012

Suggested Citation

Shepherd, Joanna, Are Appointed Judges Strategic Too? (May 5, 2009). Duke Law Journal, Vol. 58, 2009; Emory Public Law Research Paper No. 11-163; Emory Law and Economics Research Paper No. 11-109. Available at SSRN: https://ssrn.com/abstract=1910897

Contact Information

Joanna Shepherd (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
404-727-8957 (Phone)

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