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How Do Elected Judges Compare to Appointed Judges?

Though many assume that appointed judges are better than elected judges, a recent study by law professors Stephen Choi (NYU), Mitu Gulati (Duke) and Eric Posner (University of Chicago) suggests the opposite, according to this post at the University of Chicago Law Faculty Blog. The professors' study examined state high court opinions and evaluated them based on three factors:  effort, skill and independence. Under those criteria, the empirical results showed that appointed judges do not perform at a higher level. Though appointed judges write higher-quality opinions, according to the study, elected judges write many more, and thus, the professors attributed the difference in quality to volume (I would also argue that very generally, federal practice attracts more complex cases and a slightly higher quality of lawyer, which also contributes to the quality of the decision since in many cases, a judicial decision is only as good as the briefs on which it is based). The professors also found  "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)."

The post generated a number of interesting comments. Some wondered how "opinion quality" was measured. Others argued that state judges are beholden to corporate interests, which often influence elections with heavy donations. For that reason as well, some commenters criticized the study for attributing the difference in opinion quality between appointed and elected judges to number of opinions written rather than other factors.

In my view, the study results seem accurate, if only because the judicial appointment process has become increasingly politicized. Today, most appointed judges are evaluated not so much on their "quality" -- i.e., their merits or intellect -- but their appointability. So it's not surprising that any differences in quality between elected and appointed judges (if such differences ever existed) have now been eliminated with the politicization of the appointment process. Perhaps a better, or at least more interesting, empirical study would be to compare the quality of judicial opinions today to the classic decisions by judges of yore.

Posted by Carolyn Elefant on September 7, 2007 at 07:01 PM | Permalink | Comments (0)


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