Eric Posner: The Case for Electing Judges

About 40 states elect judges—a practice that has been fiercely criticized during the last year. Retired justice Sandra Day O’Connor has advocated against treating judges like “politicians in robes.” And the Supreme Court ruled that “a serious, objective risk of actual bias” exists in court cases involving plaintiffs or defendants who were major donors to a judge’s campaign. The leading alternative is a merit-based selection process, with nominations by experts and a final choice by the governor. But Missouri, which invented the merit system in 1940, is poised to vote this fall on an amendment that would require all judges to face a popular vote, a move that critics say will pollute Missouri’s courts.

Such worry is misplaced: academics have not found evidence to suggest that elected judges are more biased or incompetent than their appointed counterparts. On the contrary, as part of an ongoing project with colleagues at Duke University and New York University, I’ve found that elected judges are more productive (meaning they produce more opinions), nearly as professionally respected (as measured by citations per opinion), and no less independent (as measured by their willingness to disagree with judges in their own party). This is not to deny that judges who face elections are also more like politicians. Or that campaign-finance laws may be needed to regulate judicial contests. But as long as judges, like politicians, have the power to shape law through their decisions and interpretations, they must be accountable to their communities. A democracy should accept no less.

Posner is a professor of law at the University of Chicago.