Nominating Commissions, Judicial Retention, and Forward-Looking Behavior on State Supreme Courts: An Empirical Examination of Selection and Retention Methods

Abstract

High-profile advocates are pushing states to move away from judicial elections and toward a "merit" method because it purportedly produces the best quality judges. Quality, however, is difficult to measure empirically. Rather than attempt to measure quality, we examine whether certain types of state supreme courts are more forwardlooking than others. States are likely to desire forward-looking behavior among judges because it can protect judicial legitimacy, help states to control policy, and could be more efficient than myopic behavior. Using a recent innovation in matching called covariate-balancing propensity scores, we find that the U.S. Supreme Court is equally likely to review and reverse decisions by judges regardless of their selection or retention methods. These results suggest that state supreme court justices, no matter their paths of getting to (and staying on) their courts, are roughly equal in terms of forward-looking behavior.

Does Judicial Selection Affect Judicial Performance? Evidence from a Natural Experiment

“…There is relatively little discussion as to how judicial performance can be measured to compare different means of selection in a similar and objective manner. To date, the most commonly-used measure of objective judicial performance is reversal rates, the rate a judge's trial decisions are overturned in part or in its entirety (Cass 1995;Cross and Lindquist 2009;Posner 2000;Choi et al 2012;Hartzell 2014;Epstein et al 2013;Sen 2015;Owens et al 2015). Reversal rates indicate a judge's level of agreement among her colleagues 6 (Cass 1995).…”

“…Building on recent efforts to use an objective measure of judicial performance, we take advantage of a natural experiment in Arizona to compare trial court judges' reversal rates by their means of selection within a state (Cass 1995;Cross and Lindquist 2009;Posner 2000;Choi et al 2012;Hartzell 2014;Epstein et al 2013;Sen 2015;Owens et al 2015). All three systems -traditional elections, unfettered gubernatorial nominations, and merit review commissions -operate at once in this state.…”

Stare Decisisand the Electoral Connection: Do Retention Systems Affect Judges’ Deference to Precedent?

“…Despite the centrality of stare decisis in their work—coupled with the clear potential of popular retention to shape the manner in which they approach difficult decisions—the question of whether voter-retained judges are more (or less) likely to depart from precedent is almost entirely unanswered. Recent work has found no difference between appointed and elected courts with respect to the U.S. Supreme Court subsequently reversing their decisions (Owens et al 2015), which suggests that regardless of selection system, state court justices are equally committed to making good law. However, we are aware of no empirical studies that seek to determine whether the method by which judges are retained shapes their willingness to join majorities that overturn their own previous rulings.…”

Classifying Judicial Selection Institutions

“…With respect to judicial quality, for example, theory might suggest that selection institutions differentially sort on talent and intelligence (e.g., Posner 2005, 1268), while retention institutions differentially incentivize judges to work hard and effectively (e.g., Goelzhauser 2012). Exemplifying this approach, Owens et al (2015) examine the effect of state selection and retention methods on the probability of the U.S. Supreme Court granting review and reversing in cases decided by state supreme courts. Second, scholars may be interested in particular pairwise combinations of selection and retention institutions.…”