judgesonmerit.org

We’ve just been reading a 2007 article by three law professors comparing elected judges to appointed judges. The professors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — studied three areas — effort, skill and independence. The independence issue grabbed our attention for two reasons. First, we care about judicial independence and its relation to how judges are picked. Second, this part of the study was completely misrepresented by American Courthouse in a post against Merit Selection.

Here’s the cliffnotes version of the study. First, the authors’ definition of independence was itself unusual; they defined and measured “independence” as the frequency with which a judge dissented from opinions authored by a judge of the same political party. Second, the authors concluded that there was no statistically significant difference in this type of independence between elected and appointed judges.

So, why is this study important? Because of how the authors interpreted the results:

“It might be that the different systems [of selection] attract different types of people to judgeships. . . . In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. “

According to the authors, elected judges are “more politically involved, more locally connected, more temporary, and less well-educated than appointed judges. They are more like politicians and less like professionals.”

So, who do we want on the bench, politicians or professionals? If I’m going to court, I want a professional.