Judicial Selection Methods in the American States: The Values of Merit Plans

Abstract

This article examines the relative merits of judicial selection methods in the American states. The conventional wisdom holds that appointive judges act differently than elected judges, because they are more independent and are less vulnerable to public pressure. Existing theories suggest that appointive systems create more uncertainty; therefore, one should expect higher litigation rates in these systems. They also suggest that public pressure forces elected judges to be more productive. Using time-series data on litigation rates and opinions, I investigate the impact of switching in selection methods on judicial behavior. I use tests of structural break, with both known and unknown dates, to examine whether a switch from elective and appointive systems to a merit selection causes a structural regime change. I evaluate the results using asymptotic results in the literature as well as with Monte Carlo analysis. My results contradict the existing theories. A change in selection method causes a regime change, but the direction of the change is not consistent with the prediction of the theory. Moreover, I find that adopting a merit plan significantly reduces the number of opinions written by the supreme court justices, though some exceptions exist. All together, I conclude that the switch in the selection method affect the behavior of both judges and litigants. The effects on the behavior of the judges are stronger than the impact on the behavior of potential litigants.