Former Supreme Court Justice Sandra Day O’Connor was in Minnesota recently, repeating her assertion that appointed judges are superior to elected judges.

Six years ago, O’Connor opposed a Supreme Court decision that struck down a Minnesota rule that barred candidates from explaining their judicial philosophies to voters. (Republican Party of Minn. vs. White) O’Connor feared that interacting with ordinary citizens might compromise judicial independence.

But is there any evidence to support O’Connor’s view? Not according to three legal scholars from three prestigious law schools.

In an August 2007 study published by the University of Chicago Law School, Professors Stephen J. Choi (NYU Law School), G. Mitu Gulati (Duke Law School) and Eric A. Posner (University of Chicago Law School) examined three years of decisions by every high court judge in every state – a total of 408 judges and nearly 30,000 opinions.

Although we’ve written on this before, their conclusions bear repeating in light of Justice O’Connor’s continued campaigning to end democratic judicial elections:

• The Conventional Wisdom Is Elitist… “Justice O’Connor’s backhanded put-down of Minnesota’s elected judiciary (in Republican Party of Minn. vs. White) reflects the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions, and should not be elected themselves. The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office.” (pg. 1, emphasis added) 

•  There Is No Evidence To Support The Conventional Wisdom… “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.” (abstract) 

•  The Conventional Wisdom Is Wrong… “… the data does not support the received wisdom that appointed judges are more independent than electoral judges.” (pg. 20) In fact: “Judges subject to partisan election have the highest independence.” (pg. 19) 

•  Appointed Judges Are Not Superior… “In a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common.” (pg. 1) 

•  Voters Can Play A Critical Role In Selecting Good Judges… “ … when many people participate in a decisionmaking process, aggregation of information occurs, which can produce more accurate results than when the decision is made by only one person.” (pg. 1)