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Electing Judges
The NYTimes has a good piece today on judicial elections, pointing out how odd American practice is compared to the rest of the world.
Contrast th[e] distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.
“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive.
My work on judicial elections shows that elected judges serve their constituents (see also Judge and Jury). In particular, when the defendant is an out-of-state corporation awards are much higher in states that use partisan elections to select their judges than in other states. As one judge put it bluntly:
As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone's else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me."
Richard Neely (1988), West Virginia Supreme Court of Appeals.
Posted by Alex Tabarrok on May 25, 2008 at 07:36 AM in Economics, Law | Permalink
Comments
Nothing from Judge Neely about protecting white women from darkies and Jew peddlers?
Posted by: Paul from Florida at May 25, 2008 7:54:03 AM
Judges are elected in 39 states, I think, but not in the other 13 (I don't know about
about DC and the territories, including the de facto U.S. protectorate of Israel).
Why do some states elect judges, but others don't? What can be done to abolish elections of judges?
Btw, the problem goes far beyond electing judges. I went before a judge, who couldn't have been a day under 85, here in the People's Republic of NYC in 2006 on a trumped up disorderly conduct charge.
(I punched out a derelict who had stabbed me with a brass knuckles device with two sharp points, drawing a lot of blood, in a Starbucks of all places. The cops, who couldn't have been ruder and less professional, took us both into custody a block away, and lied to me when they said they'd go back and interview witnesses, one of whom had given me his business card and said he'd testify in court as to what happened.)
The judge was clearly an incompetent hack, and refused to dismiss the charge, even though a lawyer and court official I had talked with previously told me it would be. He gave me an option of going to trial in two months--which was four months after the incident. The wheels of justice turn very s-l-o-w-l-y in the PRoNYC, which itself is an indictment of justice-by-the-State.
I then had to hire a lawyer (cost: $2,500; total tab: $4,200, including the tetanus shot in the ER on a Saturday, plus $350 for the unnecessary 7 minute private ambulance ride from the cop station to the hospital, which I had negotiated down from $510 over the phone-- "So sue me").
The lawyer, who uttered some magic words before a different (and better) judge, ended my nightmare. He specializes in criminal defense, and said his minimum fee for a garden variety murder case is $25k. When I asked him how the typical indicted murderer affords it, he gave me an interesting sociology lesson.
It turns out that when someone's life is on the line, he does what he has to do to scrape up 25k. This means, very often, going to family members, even extended ones. Also, many churches in barrios and near welfare projects pass the hat among congregants for just such contingencies, including judicial cases, and to help needy and sick members. They have a sort of honor system and shame people into adhering to it. I don't know what other mechanisms they use.
The other day the NYT quoted someone who made a distinction between political institutions and the courts. This made me laugh out loud.
Posted by: Bill Stepp at May 25, 2008 8:17:07 AM
Trust me, he started it. (I just wanted one of them Splenda packets he was stuffen into his pockets).
Posted by: derellict from protectorate at May 25, 2008 9:36:36 AM
Great hijack, Bill :)
I am worried about this "serve my constituents" attitude. Aren't judges supposed to be just? If I want a political body that strips the assets of "foreigners", I can set up an army and invade.
Posted by: David Zetland at May 25, 2008 10:29:18 AM
Surely the bigger problem is electing prosecutors, as the Duke lacrosse case showed.
When a fatally flawed but sensational case lands in your lap, a surefire steppingstone to a bigger political career as state attorney general or more, the sociopathic temptation to grandstand before the cameras and make yourself a household name is more than some can resist.
Posted by: at May 25, 2008 10:35:07 AM
Perhaps the most interesting aspect is that convicted felons can't vote so the judge can affect who is the median voter.
Posted by: josh at May 25, 2008 11:34:59 AM
I am a non-lawyer but, as a foreigner, very much out-of-state. I think that if I was defending an important state court suit before an elected judge, I would be inclined to use your work to plead that the equal protection clause of the 14th. Amendment to the Constitution barred that judge and his elected colleagues from hearing the case.
If I was up on a sensational criminal case where there was an elected prosecutor, I would consider the same tactic; but would have to ask you to do a quick, pre-plea study on how out of state defendants fared before elected prosecutors.
Posted by: David Heigham at May 25, 2008 11:50:10 AM
Is the unspoken idea in this post the idea that the Europeans have a better process for selecting Judges?
If so I don't buy it. I would much rather fall into the clutches of the American judicial system then any European one you care to name.
This is just one of many reason why.
Granted the judgment was later overturned by a higher court and granted US courts make plenty of bad decisions.
But that is precisely my point. Europe's more selective selection process does not seem to me to produce measurably better out comes in terms of justice. Moreover, the European approach seems to me to create greater ideological uniformity amongst European judges. To my mind, this is a bad thing.
The New York Times article makes much of the fact that prison sentences get longer as a Judge approaches election. But this could be a good thing. Look at some of the sentences that unelected British judges hand out for serious crimes.
Many of the measure used by the New York Times article strike me as suspect. I don’t accept as an a priori that better writing equal better justice. And I don’t accept as an a priori that longer sentences are unjust.
Your own research is more compelling, but I have seen enough to suspect that unelected judges have their own problems. Granted, elections put corrupting pressure judges just as it does on politicians. But if you don’t think that the uncountable teachers found in public schools provided a good education, why are you so sure that uncountable judges produce better outcomes?
My gut feeling based from my observation over the years is that elected judges have a worse record when it comes to settling cash cases with out of state defendants. But that unelected judges are a greater threat to fundamental freedoms.
I realize that my links are nothing more than antidotes and not all that compelling. I also realize that gut feelings are not a good way of setting policy. But it is going to take a lot more data before I long for the imposition of the European model.
Posted by: Ape Man at May 25, 2008 12:06:22 PM
The problem with the American criminal-justice system is that it is very efficient at producing criminals (..witness the world's highest prison population) -- but very poor at delivering justice.
The mere selection method of government judicial bureaucrats ("judges") is trivial to that fundamental problem of systemic corruption.
Politicization of the judiciary has been evident for decades. Most all judges are political animals (Democrats or Republicans) -- that's how they got their jobs, whether appointed or elected. Advancement to higher courts or other government positions requires 'cooperation' with politicians in power and the party leaders; boat-rockers don't go far.
"The American legal system is "flexible" .... another way of saying "arbitrary." Politicians pass complex laws --- that are the products of compromise.
Bureaucrats (especially judges) then enforce some of these laws, ignore other laws, modify all laws, and generally feather their own nests by increasing the complexity of law enforcement --- giving them greater arbitrary power over others, and greater job security."
Bill Stepp's comments (above) are strongly personal, but they accurately reflect how our noble justice-system works in the real world. The "Bill of Rights" guarantees trial by jury, due process, a speedy trial, and presumption of innocence. We don’t have any of that anymore.
Posted by: Gregson at May 25, 2008 12:22:40 PM
I sometimes think that in Britain we'd be better off if the judge gave the verdict and the jury gave the sentence.
Posted by: dearieme at May 25, 2008 12:51:24 PM
Ape Man,
as a German, I must say that it gets on my nerves big time when Americans make blanket statements about "Europe" as though it were some homogenous mass. In some cases this is actually justified (e.g., "In Europe, obesity rates are lower than in the US"), but the criminal justice systems in Europe are pretty heterogenous. For example, in Britain you have a common law system and juries, in Germany you don't.
Posted by: LemmusLemmus at May 25, 2008 1:56:57 PM
I work as a criminal defense attorney in Brooklyn, New York.
New York has a hodgepodge of a system which elects some judges and appoints others, without much coherency as to how this is done.
For instance, civil court judges are elected, but then are often appointed by the Mayor's office to sit as a criminal court judge in a district other than the one where they are elected (for instance, a judge elected in the Bronx may end up presiding in Brooklyn). The rest of the criminal court judges are straignt appointments .
Supreme Court (not the top appellate court, but similar to Superior Court in other jurisdictions) are supposedly elected, but the governor's office and mayor's office ias permiited by the Office of Court Administration to pad out the rest of the Supreme Court panel by appointing Court of Claims and Criminal Court judges then allowing them to sit as Supreme Court judges.
The assignments of these judges (e.g. what court, criminal, civil, specialized or non-specialized) are determined by non-elected officials.
The whole thing is a mess, but it allows us to see some of the differences in the way elected and non-elected judges act.
Some elected judges will flat out tell you (off-the-record of course), "I can't do that, I have to be relected". These are usually judges from more conservative electoral districts. Judges supported by constituencies that have to routinely deal with police misconduct (e.g. regular stops-and-frisks without cause), are often more responsive to those constituencies concerns and are more critical of the police and prosecution.
However, the appointed judges are often former prosecutors who have real difficulty believing that police misconduct exists or that a defendant might be innocent, which is particularly bad for fair treatment in bench trials and suppression hearings.
The person controlling the appointments often injects politics into the decision. Thus from Pataki and Giuliani (and to a large extent Bloomberg) judicial appointments are largely ex-prosecutors or "law-and-order" types. Given this, and given the fact that Federal judicial appointments have become intensely politicized, it seems far from clear that appointed judges are more removed from political considerations.
Of course, the Brooklyn electoral system is further screwed up by the fact that the nomination process involves a huge amount of horse-trading and defeats the democratic process (thus resulting in the Lopez-Torres case in the United States Supreme Court). See http://brennan.3cdn.net/6a990d231fa8ab0e67_q3m6b36nz.pdf
Posted by: NewYorkDefenseAttorney at May 25, 2008 1:58:42 PM
Incidentally, Neely has a pretty good national reputation and has written broadly about his experiences and ideas. From his writings he doesn't seem like a hack, though of course those who have practiced and appeared in front of him would have a better idea of his judicial temperament. He has a Wikipedia page.
http://en.wikipedia.org/wiki/Richard_Neely
Posted by: NewYorkDefenseAttorney at May 25, 2008 2:03:28 PM
Could we have a citation for the Neely quote, please?
The statement is sufficient to establish a fairly gross violation of the canons of judicial ethics, so I think it would be fair to point to the evidence for the statement.
Posted by: Anderson at May 25, 2008 2:40:42 PM
I think it's very troubling that judges are changing their decisions based on arbitrary and irrelevant considerations like whether the parties are in-state or out-of-state or when the next election cycle is. We should at least be taking a closer look at the systems of other countries. But we Americans are very attached to our unusual system of government: powerful executive elected through 18th-century compromise system and not removable except for supermajority conviction for high crime, high court with the power to overturn legislation passed by the national parliament, powerful local governments, etc. Some of these things are good, some are bad, but we love them all.
Posted by: Elliot Reed at May 25, 2008 3:11:42 PM
Interesting journal article, I enjoyed reading it. Regarding your methodology, where you state, “we do not directly compare state cases and federal cases. Instead we follow our earlier differences-in-differences methodology,” have you done such an analysis for other countries to see if you obtain similar results?
Posted by: dcwilk at May 25, 2008 3:38:55 PM
At the University of Chicago, the late David Currie was a tireless advocate for the advantages of the Article III system of appointing judges for life. He would probably have loved your work, Alex.
Is the Article III system more French than American? No. Because if William Douglas had had to pass any tests, he might never have been on the Supreme Court. You can say that that would have been for the better. But then you don't get John Marshall either.
Posted by: Michael F. Martin at May 25, 2008 3:58:45 PM
At the University of Chicago, the late David Currie was a tireless advocate for the advantages of the Article III system of appointing judges for life. He would probably have loved your work, Alex.
Is the Article III system more French than American? No. Because if William Douglas had had to pass any tests, he might never have been on the Supreme Court. You can say that that would have been for the better. But then you don't get John Marshall either.
Posted by: Michael F. Martin at May 25, 2008 3:59:23 PM
Lenmus bis
There is not an american system either. There 51. only in 13 startes judges are elected.In the rest and at federal level they are appointed.
They are not politicians in Europre, well, Germany. Roman Herzog was President of the Constituional Court because he was democristian, he was a great judge , but it didnt count.He asked a temporal leave for a bid to the Presidency of Germany, with the condition that he can get back if he failed.He was a great president.
28% of constitutional judges have been democristian, 46% socialdemocrats.They are elected after hard negotiations amongs the political parties. And thay are pieces of the parties.In 1991 the Karlrouse Court struck down a law taht would require to elect a judge , like ABA wans in the USA, that they were non menbers of political partes.The Court ruled that the law violated the participation rights of the judges, they are not half citizens.
France, Roland Dumas , socialist, president of a oil company was denounced by his misstres in a book titled "the putain of the Republic", "the w.. of the republic" , for getting rich by ilegal means. He was not judged until he allowed it. he was President of the Constitutional Court. Separation of power means tath officials cant not be charged and go to trial.
The State Council wich carries judicial review if formed in half by government officials.
Not to mention Spain were the appointment of the member of the administrative body forr the Judicial power have been bloced for 2 years , talking about filibusterism.
In Spain, nespapers predict with great accuracy the decitions of the Constuituional Court, they only nned to know the position of the party that put them there to know how they will vote. The govermnet can recuse judges and they did it when they feared taht the conservative members will defeat tha autonomy statute for Cataluna. The extended the tenure of the President of the Court with double vote , because she is socialist and will vote following partisan line.Last ewek the recused judge die, The PP wants one of the party replacing him, is the costume. The government pleased with the opportunity wants a socialist.
Posted by: karl at May 25, 2008 4:10:01 PM
A bit of a history lesson:
From the time it became a state until 1840, Mississippi had appointed Supreme Court judges, and for the time, the state's judiciary was comparatively progressive. Unfortunately (depending on how you look at it), the Court also took a progressive view of slave rights, going so far as to say in a landmark opinion that when there was any doubt as to whether a person was legally a slave or was free, the law would consider him a free man. A number of cases limiting the rights of slave owners led to the passage of the Mississippi Constitution of 1840 which, among other things, mandated elected Supreme Court judges and instilled a tradition of demagoguery, racism and very often willful pig-ignorance that plagues the Court to this very day.
Every year there's a move in the legislature to move to appointed judges and every year it gets shouted down by stalwart defenders of the status quo who preach about their constitutional right to elect judges, even though probably not one Mississippian in ten could name all nine members of the state Supreme Court.
Posted by: atalex at May 25, 2008 4:13:46 PM
Ape man
the QB VII like ruling wasright.The law force him to condem. But it was unjust because the defendant was right.he denounced the hoax tath frenchtv used to ignite the second intifada.
Posted by: karl at May 25, 2008 4:21:55 PM
I must say, the quality of discourse in this country has taken a sharp plunge of late, not only among the ruffians and ne’er-do-wells from whom one expects coarse speech, but among gentlemen of letters and esteem. I have, with my own ears, several times in the past week, heard the elder sons of prominent families introduce into mixed company subjects formerly reserved for private discussion among gentlemen. It pains me even to raise this point, but following a string of recent events, there is no question that the adage bears repeating: A gentleman ought never to disclose who sucked him off.
This needn’t mean a gentleman must limit the discussion of his exploits to his journal. If a gentleman has met a young lady and taken her to his digs, it is his right and privilege to tell his friends and coworkers about the encounter. However, it is the mark of a true gentleman to omit his lady friend’s name from the discussion of her pussy’s tightness.
Why, I had assumed that this custom and others like it were universal and well understood, but as long as I am spelling out the Rules of the Gentleman, allow me to introduce several other equally important but oft-neglected guidelines.
Should a gentleman find himself alone with a lady, he should not simply undo his pants and come in her hole. A gentleman knows that it is good manners to coax his lady friend’s heels as far above her head as they will go, to “split the reed,” and perhaps to turn his lady over and give it to her “doggy style.” A gentleman knows that a true lady enjoys a moderate amount of hair-pulling and ass-grabbing, taking these attentions as marks of affection and virility. However, a gentleman knows where to draw the line. He never lodges his lady friend’s head between the couch cushions.
A gentleman occasionally will have more than one guest at his home. Should he see that jealousy is breeding between the two ladies whom he is hosting, a gentleman does not say, “Whoa, ladies, there’s enough of me to go around!” The gentleman, valuing decorum and discretion above all else in his paramours, gently guides his guests’ heads from his penis and informs them that if they do not act like ladies, he will have to ask them both to leave.
When up to his nuts in a lady’s guts, a gentleman knows that it is quite impolite to smoke, talk politics, or take phone calls. Should his cell phone ring, the gentleman says, “Excuse me, I need to take this.” He withdraws his penis from his lady friend and keeps his phone conversation brief. When he has completed his call, a gentleman gently reinserts his dick into his lady.
Of course, a gentleman who is not a smoker keeps an ashtray on his balcony for his lady friends who wish to smoke.
It should go without saying that, once he has arranged for a paid lady of the night to meet him at his home, a gentleman does not jerk off several times while awaiting her arrival, in order to “get his money’s worth.”
A gentleman knows that accidents happen. While it is an unfortunate and boorish behavior that should be kept to a minimum, a gentleman always apologizes to a lady after he mistakenly shoots his load inside of her.
A gentleman never comes in a lady’s eyes.
While he knows that a lady gets pleasure out of pleasuring him, and he will occasionally increase the intensity of that pleasure by gentle force, a gentleman will never choke a woman on his cock.
If a gentleman wishes to attend to a lady’s pleasure through oral manipulation, no matter what the state of affairs below, he always politely completes his task. A gentleman ought never to fan his hand in the air, grimace and make a show of removing a pubic hair from his teeth, or compare his lady friend’s vulva to two strips of partially grilled fajita meat.
A gentleman knows that it is considered good manners to have an unopened toothbrush on hand for his lady friend, in the event that she should like to freshen up after eating his ass.
Breeding needn’t amount to priggishness. On the contrary, a gentleman knows that good old-fashioned manners will likely increase his social engagements, once word gets out that he is not one to splooge and tell. But I beg the reader, for the sake of tradition and all that is decent, to remember that a true gentleman does not ever, under any circumstances, go ass to mouth.
Posted by: Charles Dubno at May 25, 2008 11:09:41 PM
I think elections for judges that can meet solid criteria is a good thing. But I would change how votes are counted. If you vote for the same guy for ten years, then your vote counts. I mean we do want stability in our judges, don't we?
Posted by: Al Brown at May 26, 2008 12:02:43 AM
What about the fact that to get elected to any position in government these days -- judges included -- you need the help of someone with money? Do you really want your judges indebted to wealthy businessmen who donated to their campaigns or anyone else who helped them get elected?
And if anyone wants to get riled up about something wrong with the judicial system, my first bone to pick would be the incestuous relationship between the prosecutors' office and the judges -- there's an uncomfortable amount of crossover between these two jobs, not to mention that judges and prosecutors are usually friends outside of the job (due to the fact that prosecutors usually work out of the same building and/or are in the courtroom nearly every day). I'm a firm believer that there is no such thing as a completely arbitrary judge, even though they go to great lengths and all kinds of intellectual acrobatics to claim that they are.
Posted by: 1234 at May 26, 2008 3:25:58 PM
