Thursday, December 29, 2011

Do Some of our Elected Judges Lean Toward "Politically Correct" Decisions?

Any trial attorney knows that psychological issues are as important to a trial judge as legal issues are to a jury. Anyone who ever watched a Perry Mason TV episode (sorry if you're too young to get it) understands the role emotions play in a courtroom. Instead of cops and robbers, we often just have robbers who consist of: (a) government bureaucrats who are interested in "taking" private property without paying just compensation, and (b) trial court judges who are more concerned with the financial integrity of the local government than they are for the Constitution of the United States of America.

The 50 states that comprise the United States of America are blessed with some of the most pristine -- and beautiful -- landscapes on earth. For private owners of these landscapes, the words "beautiful" and "pristine" have often become fighting words. Yet in 1789, our founders reached an accommodation, of sorts, on that issue. That deal, ultimately part of our constitution, and included assurances that no private property would be taken by the government without just compensation.

It would not surprise me to learn that, on the first opportunity, some 18th century government bureaucrats sought to seize private property "for a public purpose," without any regard for just compensation. Today, it goes without saying that local governments have fallen behind on revenue projections to the extent that their grande schemes of the previous decade were nothing but pixie dust. Unfortunately, that dust includes fixed labor contracts with government employees' unions, primarily teachers, firefighters, and police, but also school janitors, bus drivers, etc. These forces can re-shape the environment in any town or city in the United States.

One subject, that of elected vs. appointed trial judges, has come up many times over the past 200 years. To whom are elected judges indebted to? The subject has been debated before, as we note below.
"What method of judicial selection produces the “best” judges? And how do we determine who are the “best” judges? Stephen J. Choi (NYU Law), G. Mitu Gulati (Duke Law), and Eric A. Posner (University of Chicago Law) endeavored to answer these questions in their paper, “Professionals or Politicians: The Uncertain Empirical Case For An Elected Rather Than An Appointed Judiciary.” They took an empirical look at how differently selected judges rate on effort, skill, and independence aspects of judicial performance. As you might discern from the title, which judges perform “best” largely turns on what virtues you are looking for in a judge. (Hat tip to the University of Chicago Law Faculty Blog).
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for 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. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).
It is my professional opinion that judges who are appointed on ability, rather than elected in a nonpartison election are the better choice.

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