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.