Sunday, May 25, 2008

Study: Elected judges issue more opinions of lesser quality

A story today in the New York Times by Adam Liptak focuses on electoral selection of judges in the US, and mentions this interesting if predictable tidbit ("Rendering justice with one eye on re-election," May 25):
A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.

“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”
The story also supplied some interesting data on elected judges in the US compared to the rest of the world:

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

My own views on this controversy are somewhat transient and situational; I like judicial elections because it gives you a chance to vote out bad judges. But the races are too dependent on candidates atop the ballot, and most voters don't typically make informed decisions about judicial candidates. The idea of a retention election seems to possibly capture the best of both worlds.


Anonymous said...

Electing Judges would be okay if they were not Party affiliated.

You get into real problems when one of the parties is in control in a State and people don't do their homework when they vote, just vote a straight party ticket. This is bad judges get to keep their jobs and IMO I feel the polictical party affiliation should be completely eleminated from the election of all judges.

Suggestion: read everything you can about a candidate and make an informed decision and don't just follow the party code.

Anonymous said...

anonymous said:

"You get into real problems when one of the parties is in control in a State and people don't do their homework when they vote, just vote a straight party ticket."

One cure would be to eliminate straight party voting. Maybe if everybody had to mark every office they might pay more attention to the candidates -- or they could just skip the offices they don't care about.

Anonymous said...

I am out of San Angelo, ground zero to every network on Earth. I have been a precinct election judge since '94. Republican if it matters, I have sat State Rules Committe the last two. Not this time, I'm broke and don't like Houston anyway.

To the point, THE most common question an election official gets (well, right after the primary voter comes back and wants to know where the "straight party" box is. Swear to God, I hear this at least once a primary, equal opportunity stupid ) where was I?

Oh yeah judical elections. Single most common question is a voter wanting advice on judicial races, and of course we can't do anything past reading the ballot language.

Reporting from where I am, it's scary how people vote. I DO explain that said voter need not mark all races, I'm allowed that.

I have more personal knowledge of judicial candidates than most of my precinct voters, and I've seldom done much more than pump their hands at some campagn event.

I can't afford a Westlaw subscription if I wanted one, once in a while I get to "crib" from a friend. How is an ordinary voter supposed to make a qualified choice?

ms_saul said...

Just to throw out my own opinion, I am strongly against judicial elections. I don't see how it does anything other than directly pit a judge's decisions against his desires to keep his job. I don't want a judge's opinions to be colored by the election box. And in these days as the parties seem to be getting more and more partisan, I can't see how that leads to anything other than more bias.

PS. Thanks for posting on my blog, Grits! I just noticed it last night, so I didn't mean at all to ignore it.

Anonymous said...

Making judicial elections non-partisan is NOT the answer. You will then have a judiciary controlled and elected by the same 3% who both to vote in school board, city council, and bond elections. Is that REALY what you want?

Anonymous said...

Yes it would be nice if all the candidates had to go through special preparation schools and continuing education like the French but it's also important to kick out bad judges: in America we have enough of them that Reader's Digest has regular features on their silliness. The federal judges are just slightly better than the state judges but most of them have either practiced federal law or been state judges, so appointing them isn't better unless you train them first.

Here are some ideas that I think would improve their quality:
(1) Make them pass a special judicial education school and exam
(2) Make them take continuing education course and retake the exam every few (3-4) years
(3) Make them get a highly qualified rating from a committee on judicial quality before each election
(4) Previously elected judges who receive the highly qualified rating and pass the exams would be subject to an election for retention at the primary election, if they get 50% of the votes then they would continue in office, otherwise the office would be up for general election
(5) At the general election only allow "highly qualified" candidates who have passed the judicial school and exams to compete in a non-partisan election.

I think that having the governor with consent of the legislators select judges is almost as bad as allowing the public to choose them, and the legislators seem unwilling to impeach bad judges except when the situation is politically motivated.

Anonymous said...

I would like to see all judges have the following as MINIMUM qualifications:
- experience both as a prosecutor AND a defense attorney
- passing courses in judicial knowledge, with continuing education required
- rated highly by the bar association, with a proven ability to get along with everybody, and ability to empathize with all parties coming before him/her
- psychological testing to rule out despots and other antisocial types (would disqualify many)

Anonymous said...

In some states, district and appeals court judges don't even have to be lawyers. In fact, I know of one Southern state that has absolutely no educational or professional requirements for a person to stand for election to district or state appelate court.