Who Are Better Judges: Elected Judges or Appointed Judges?

Answers to your questions about the news.
Oct. 31 2012 3:20 PM

Election v. Selection

Are appointed judges better than elected judges?

promo_TAKEOVER_Header

Justices Barbara J. Pariente, Peggy A. Quince, and R. Fred Lewis.
Florida Supreme Court Justices Barbara J. Pariente, Peggy A. Quince, and R. Fred Lewis

Courtesy Florida Supreme Court.

A Koch Brothers-backed campaign is seeking to vote out three Florida Supreme Court justices. Some states elect judges, some appoint them, and others, like Florida, have hybrid systems. Explainer readers want to know: Are appointed or elected judges better?

Elected judges work harder, but appointed judges work smarter. Elected judges resolve more cases and write more opinions per year than their appointed colleagues, according to research by Stephen Choi of New York University, Mitu Gulati of Duke University, and Eric Posner of the University of Chicago. (The U.S. Supreme Court exemplifies the work rate of appointed judges. The justices’ annual output has shrunk by more than 50 percent in the last 30 years, and they now only decide a few dozen cases per term.) Elected judges probably hope that their productivity will impress the voting public. Appointed judges have an entirely different constituency: other judges. Appointees tend to view themselves as more erudite than elected judges—appointees graduate from higher-ranked law schools—and they work to produce opinions that are better written or better reasoned. As a result, judges are more likely to cite an opinion written by an appointed colleague.

So what’s more important: quantity or quality? On a fundamental level, a judge’s job is to resolve disputes between litigants and correct errors made by lower courts. A judge who resolves more disputes and corrects more errors is better than one who does so less often. But quantity and quality aren’t completely separable. Well-reasoned decisions send clear messages to lower-court judges and to private citizens. That means fewer judging errors and probably less litigation to begin with, as people better understand their legal obligations. In the end, there’s no reliable method to measure whether the consistency and quality of appointed judges outweighs the raw productivity of their elected counterparts.

Advertisement

Some scholars have attempted to answer this vexing question by conducting polls. A 2006 study, for example, showed that attorneys at major companies prefer judges who don’t have to stand for partisan election. But there’s something oddly circular about taking a vote on whether voting produces the best results.

Astute readers have noticed that the issue of judicial independence has not yet come up in this discussion. Scholars have difficulty testing the conventional wisdom that appointed judges are more independent, and the results are mixed. In a 2009 study, Joanna Shepherd of Emory University showed that judges beholden to Republican voters take more conservative positions, while those who rely on Democratic constituencies issue more liberal opinions. In contrast, in the study mentioned above, Stephen Choi and his co-authors found that appointed and elected judges were about equally likely to rule on partisan grounds.

Independence is not only difficult to measure, it’s also of questionable value. Although the judiciary is, to an extent, ballast against democratic excesses, contradicting the views of the voting public isn’t always a good thing. A judge can be consistently independent and consistently wrong.

A handful of narrower studies demonstrate some other differences between appointed and elected judges. People who are injured in accidents win bigger awards from elected judges, possibly because enormous verdicts against deep-pocketed corporations give the judiciary a Robin Hood-like appeal. States with elected judges also see more employment discrimination claims, probably for similar reasons.

Got a question about today’s news? Ask the Explainer.

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Weigel
Sept. 20 2014 11:13 AM -30-
  Business
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
  Life
Quora
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 20 2014 3:21 PM “The More You Know (About Black People)” Uses Very Funny PSAs to Condemn Black Stereotypes
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.