Apr 30 2008
Politicians or Professionals
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.
Tags: Judges, judicial independence, politicians
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Imagine a judicial system where a judge can decide a case in which she is a defendant, even though there are nineteen other judges available and authorized by statute to hear the case.[1] Now, imagine a system of judicial discipline that takes place entirely behind closed doors, where citizen complaints are routinely quashed with impunity.[2] And imagine a judicial nominating system that takes place in a smoke-filled room, wherein a select cabal of potentates decides who will become your next unelected and unaccountable super-legislator.[3] This is the current state of affairs in the “merit” selection state of Colorado.
Personally, I’d prefer Gerry Spence’s suggestion that judges should be drafted at random from a pre-qualified stable of candidates to serve for fixed terms. Better to have an honest amateur or an accountable politician than the corrupt “professionals” we must suffer under the euphemistically-named “merit” selection system.
The Scots have an old saying: “Be careful what you wish for. You just may get it.”
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[1]Smith v. Mullarkey, 121 P.3d 890, 891 & n. 1 (Colo. 2005) (per curiam). Under Colorado law, where a justice is precluded by law from hearing a case due to a conflict of interest, a judge of the state court of appeals can be called in as a substitute. Colo. Rev. Stat. ‘ 13-4-101. However, for a law to have any meaning, judges actually have to follow it.
[2] Colorado’s Commission on Judicial Discipline, KnowYourCOurts.com, http://www.knowyourcourts.com/JDC/JDC.htm.
[3] In Colorado, all attorneys serving on the judicial merit selection system are chosen by majority vote of the state Attorney General, the Chief Justice, and the governor; all citizen members are chosen by the governor. Colo. Const. art. VI, ‘ 24. See generally, Colorado Judicial Branch, Judicial Nominating Commissions: Colorado Merit Selection System, http://www.courts.state.co.us/supct/committees/supctnomincomm.htm.