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

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).

Are Judges Overpaid?: A Skeptical Response to the Judicial Salary Debate

“…There is also the possibility that dissenting is a greater display of independence than writing a majority opinion. However, we found no significant differences exist in the Independence scores of active dissenters compared with occasional dissenters for judges of any of the four selection systems (Choi, Gulati & Posner 2007). …”

Judicial Decision Making: A Dynamic Reputation Approach

“…Our dataset covers the ten-year period between 2001 and 2010, and it includes all felony and misdemeanor offenses in which the offender was convicted and then sentenced by the Pennsylvania Court of Common Pleas. 9 Criminal cases are assigned among the 60 judicial districts following Pennsylvania venue rules, according to the place where the crime was committed. 10 Ordinarily, every sentence must be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere, 11 and reported by the judge to the Commission on Sentencing.…”

“…12 The guidelines assign two scores for each offense: (1) an offense gravity score (OGS), which ranges between 1 and 14 (where 14 represents the highest severity); and (2) a prior record score (PRS), which is based on the offender's prior criminal record and divided into 9 The courts of common pleas are the courts of general jurisdiction in Pennsylvania. As such, they have jurisdiction over all felony and misdemeanor offenses See Pa. Const.…”

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“…that there are enough similar alternatives. 12 We exclude non-meaningful alternatives with less than 2 years experience or who exit on the same day. Taking 10 random draws without a replacement delivers qualitatively similar results (available in the online appendix).…”