Reading #1: Professionals or Politicians: the Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary by Choi, Gulati, Posner

Reading #1: Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary by Choi, Gulati, Posner

• Background:

o Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure

• Little evidence for this

• Three aspects of judicial performance: effort, skill, and independence

• The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment

o Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference

o Elected judges are not less independent than appointed judges

o ELECTED JUDGES FOCUSE ON PROVIDING SERVICE TO VOTERS, WHEREAS APPOINTED JUDGES CARE MORE ABOUT THEIR LONG TERM LEGACY AS CREATORS OF PRECEDENT

• Intro:

o Voters are too unsophisticated to evaluate judges and candidates for judicial office

o Conflict of interest when judges run for office

o Cronyism is common with our current appointments though

o Ordinary people, not just unsophisticated people, evaluate candidates even though they don’t necessarily know how

• Rely on party endorsements and newspaper editorials and give and take of the campaign

o Traditionally, a judge is measured on judicial independence (willingness to vote against ideological interests of the party of the elected official who appointed her or to the party she belongs too)

• This isn’t a really good measure though…

• A judge who votes against her party still make bad decisions

• Independent judge who is lazy will not resolve many cases/ resolve them poorly

o To test the conventional wisdom that appointed judges are better than elected judges, they used a tripartite definition of judicial...