A View from the Ivory Tower
March 22, 2013
The “merit” selection crowd is crowing about a new study purportedly showing that “elected judges [are] less effective than their merit chosen counterparts.” The study was written by a couple political science professors and finds that state Supreme Court justices “shielded from voters’ influence … make less mistakes.”
The question of who anointed a bunch of college professors with the wisdom of Solomon to determine which cases judges decided wrongly is hard to discern. But let’s set that aside for a minute. According to Table 4 in the study, elected judges have a 0.6% probability of wrongly overturning a lower court decision, compared to 0.7% for “merit” selection judges.
Not a lot of daylight there, but hardly evidence that elected judges are wrong more often than judges chosen under “merit” selection. That same table reveals that “merit” selection judges have a 0.4% probability of wrongly upholding a decision vs. just 0.2% probability for an elected judge. In other words, “merit”/retention judges are twice as likely to uphold a wrong decision than elected judges.
Then there’s the problem of Fig. 2 and Fig. 3. In both cases, the state where states had the highest probability of reaching an incorrect decision was Colorado, with Tennessee following close behind. Both states use “merit” selection to pick judges, although Tennessee’s Legislature recently approved a ballot initiative that would rollback “merit” selection in favor of a modified federal system.
Even if you subscribe to the absurd notion that political science professors should be the arbiters of which judicial decisions are reached correctly or wrongly, the study is hardly the slam dunk “merit” selection proponents claim. At best, the study joins the muddled collection of research which confirms what is already obvious: Some judges are good and some judges are bad, regardless of how they are selected.