"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi

Show-Me Institute Does Not Take Sides in Political Debate Over Judicial Selection

January 21st, 2009 by mopns · No Comments

SMI Press Release:

SAINT LOUIS —
Judicial selection is a hot political issue in Missouri. Groups and individuals throughout the state have taken sides in efforts to either alter or preserve the methods by which judges are chosen in their particular jurisdictions. The Show-Me Institute has become aware that some political activists have linked its research to a particular side in these political debates, and so it has become necessary to issue this press release as clarification that the institute’s judicial selection research is more limited and qualified than it has been portrayed.

The Show-Me Institute published a study in early 2008 dealing with judicial selection mechanisms, “Is the ‘Missouri Plan’ Good for Missouri? The Economics of Judicial Selection,” by economics professors Joshua Hall and Russell Sobel. This study compares seven different types of judicial selection systems found within the United States, four of them variants of the Missouri Plan. Hall and Sobel gauge the effectiveness, or “quality” of each of these systems by ranking how well they promote economic growth, according to the impressions gauged by an annual survey of attorneys. They conclude that implementations of the Missouri Plan produce far better growth outcomes than do partisan or nonpartisan elections, because — according to this survey data — states using elections to choose judges grow more slowly. The study also finds no practical difference between existing variations on the Missouri Plan, concluding that Missouri would likely be no worse off by experimenting with partial modifications to its existing process, such as election by the legislature, adding legislative confirmation to the current gubernatorial nomination process, or doing away with the nominating commission entirely.

The study certainly provides useful data for understanding the relationship between judicial selection methods and the degree of respect held for a state’s judiciary. As the authors pointed out, they based their research on “the only empirically based index that exists across states and through time.” The study also cites previous research that shows a correlation between high scores on the index and real, concrete measures a state’s economic growth. But, as the authors explained, the index may have a built-in bias that readers should consider, because of its reliance on the opinions of attorneys for large public corporations. It is possible that those responding to the survey are more likely to favor judicial systems in which members of the legal community has significant control over the appointment of judges. It should also be noted that the study only compares existing selection mechanisms for state supreme court judges, and so its conclusions may not be applicable to debates over how to select judges in smaller jurisdictions.

While the Show-Me Institute study by Hall and Sobel provides valuable data from one particular perspective, it is not a comprehensive, all-encompassing treatment of the issue — and the study itself never claimed as much. Supplementary studies might consider the extent to which a particular selection process promotes variables such as strong property rights, sensible limits on tort damages, or simple judicial accountability.

The Show-Me Institute encourages Missourians to read and cite its work, but it’s important to do so accurately. The selection method for an entire legal system is an area in which people of good will can differ — and in which the Show-Me Institute as an organization has not chosen sides.

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