PROFESSIONALS OR POLITICIANS

PROFESSIONALS OR POLITICIANS: THE UNCERTAIN EMPIRICAL CASE FOR AN ELECTED RATHER THAN APPOINTED JUDICIARY

S.J. Choi, G.M. Gulati, E.A. Posner

The Journal of Law, Economics and Organization, Vol. 26, No. 2 (Nov., 2008)

A Summary 

In a Nutshell

Appointed judges write higher quality opinions than elected judges, but elected judges write more, and evidence suggests that the quantity makes up for lack of quantity. In addition elected judges are no less independent than appointed judges. Elected judges focus more on providing a service to voters (like politicians) whereas appointed judges care more about their long term legacy (like professionals).

 Theory

  • Traditional view is that voters are too unsophisticated to evaluate judges and candidates for judicial office, yet in an appointment system nothing forces electors to choose ability over cronyism.
  • Agency models warn that if not properly selected, monitored and rewarded, agents will not act in the interests of their principals. The judiciary needs to be selected so that it has preferences similar to those of the public. Elections may ensure people with mainstream views become judges, but if the public cannot properly evaluate a judge’s performance he can mislead them as to his fidelity to what is best for the public.
  • Judges should be rewarded for good behaviour, but if someone has the power to reward the judge may decide not on what is right, but on what will placate the agent.
  • New literature sees the relationship between the public and the judiciary as one of principal-agent. The optimal selection method minimizes selection costs. The optimal mechanism screens out judges who are lazy or ideologically self-indulgent and punishes those who are observably lazy or self-indulgent. What type of method is best?
  • Electoral – public select judges that appear neutral and motivated and can vote out those who appear to be otherwise.
  • Appointed – judicial choice is bundled among other potentially more salient issues, so it is hard to punish judges (as the candidate that appointed them would have to be removed). Yet if the elected official benefits from a good judicial system, and is better able to evaluate the performance of a judge, then appointed judges may be better. Theory is ambiguous.

 Judicial Quality and Selection Methods

  • Productivity – total number of opinions written. More opinions solve more disputes so this is a measure of quality.
  • Citations – more citations mean better opinions so this is also a mark of quality.
  • Independence – propensity of a judge to decide against his state party affiliation.
  • In certain states judges are elected on a partisan basis, elected without reference to party, committee appointed, or governor appointed.
  • If conventional wisdom holds appointed judges will have higher productivity, citation numbers and independence.

 Productivity

  • Partisan elected judges are the most productive followed by merit plan and nonpartisan elected. Appointed judges are the least productive.
  • Highly paid judges are more productive, as are more experienced judges, although productivity drops as they approach retirement.
  • Why? Productivity could be used by voters as a signal of competence, and indeed productivity is used in the electoral campaigns of judges.

 Citations

  • Judges subject to less partisan pressure write less frequently cited (higher quality) opinions. Appointed judges write the highest quality.
  • It is possible that opinion quality is not observable by the public and as such there is little pressure on elected judges to make high quality law. With less pressure to produce output, appointed judges may prefer to advance their influence and professional reputation by writing good opinions.

 Independence

  • Mixed results.
  • Elected judges dissent the most.
  • The propensity of the types of judges to write against co-partisans is roughly equal suggesting equal independence.
  • Conventional wisdom on this point needs to be reexamined.

 Explaining the Results

  • From the average litigants perspective elected judges provide more justice to more people. Fewer litigants receive better justice with appointed judges. They exhibit similar levels of independence.
  • The simple agency model did not have clear predictions. If an agent is given two objectives and one is harder to measure than the other, then he will shirk on the harder one. Judges in more partisan environments thus may write more opinions.
  • An alternative interpretation is one that focuses on selection rather than monitoring. Electoral systems attract politicians whereas appointment systems attract professionals. Politicians want to satisfy a voting public and this might mean deciding more cases. Professionals are more concerned with reputation among a group of like-minded peers, so they are interested in delivering well-crafted opinions. Politicians see their role as resolving disputes, whereas professionals advance the law.
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