Argument: Judicial elections are known to produce inferior judiciaries

Issue Report: Election of judges


Walter Olson. “Judicial elections: a dissenting view”. Point of Law. July 17, 2008: “Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies — in Western Europe, Japan, Canada — as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive “American disease” of law.

When you get down to comparisons between particular states, the sorts of outrages of which business has long complained — runaway juries, outlandish punitive damages, judges who practice “home cooking” favorable to local chums — have long been concentrated in the same states where partisan judicial election is the order of the day. Most of the fabled nightmare jurisdictions — south Texas, Alabama, the Bronx — were and are places where judges run for election. Meanwhile, Delaware, known as the state most favored by business in litigation, had and has appointive judgeships. Alex Tabarrok and Eric Helland have found strong evidence that where judges are elected on partisan ballots, trials result in higher verdicts against business defendants and specifically against out-of-state business defendants.

Examples of particular states could be multiplied at length. In New York, while the runaway-jury tales of the Bronx and Brooklyn arise in courtrooms presided over by locally elected judges, the judges on the state’s highest court — who have often stepped in to correct those excesses — owe their positions to gubernatorial appointment. Mississippi, site of this year’s judicial-bribery scandals? Another election state.”

The Show-Me Institute of Missouri bills itself as “Advancing Liberty With Responsibility By Promoting Market Solutions for Missouri Public Policy”. In May, it published a study by Joshua Hall of Beloit College and Russell Sobel of West Virginia University on the much-attacked “Missouri Plan”, long the model “merit selection” scheme. Among other conclusions, Hall and Sobel noted that the states that did best on the U.S. Chamber of Commerce’s 50-state rankings of state legal systems tend to be merit selection states. Hall and Sobel conclude that while tinkering with the details of Missouri’s existing plan might well be worth considering, replacing it wholesale with a different system would run a serious risk of undercutting judicial quality in the state.”