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. 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.
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.