Are Appointed Judges Strategic Too?
Shepherd, Joanna M., Duke Law Journal
The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers' arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence.
TABLE OF CONTENTS Introduction I. Historical Developments in the Selection and Retention of State Judges II. Judicial Independence under Different Selection and Retention Methods A. Elected Judges B. Appointed Judges III. Empirical Analysis A. The Model's Technical Structure B. Details of the Model 1. Dependent Variable 2. Retention Method Variables 3. Control Variables 4. Estimation Method C. Primary Empirical Results D. Political Loyalty or Retention Concerns E. Judicial Review under Different Retention Methods IV. Implications and Conclusions Appendix A: Full Set of Primary Results
For almost a century, few debates have been the subject of more legal scholarship than the debate over the election versus appointment of state judges. (1) Much of the debate has centered on the tradeoff between judicial independence and accountability. (2) An independent judiciary is often defined as "one that does not make decisions on the basis of the sorts of political factors (for example, the electoral strength of the people affected by a decision) that would influence and in most cases control the decision were it to be made by a legislative body." (3) The conventional wisdom among lawyers and scholars is that an appointive system can best achieve an independent judiciary. (4) Judicial elections, they argue, turn judges into politicians at the expense of judicial independence. Indeed, based on these arguments, many states' judicial selection systems have evolved away from pure elective systems and toward more hybrid models.
Substantial empirical evidence establishes that retention concerns strongly influence judges facing reelection, making them less independent than judges facing gubernatorial or legislative reappointment. (5) Using a data set of virtually all state supreme court decisions from 1995-98, however, this Article shows empirically that in many types of cases, judges facing reappointment are more likely to vote strategically than judges facing reelection. Although these findings contradict the conventional wisdom, they support the fears of the original proponents of judicial elections. Many of those original reformers feared that an appointive system made judges "the instruments of power . …