By Chris Bonneau

The Detroit News, June 19, 2012

Recently the Judicial Selection Task Force testified before the Michigan Legislature on its recent report, which makes several recommendations regarding judicial selection. The most troubling aspect of the report is that the majority of the committee favors, though does not formally recommend, eliminating judicial elections.

Over the last year, a national debate has been brewing over how states select their Supreme Court justices. This debate is not unfamiliar to Michigan, where the people directly elect their judges. Nor is this sudden interest in judicial selection a coincidence.

Several powerful figures have recently coordinated to oppose judicial elections, including the American Bar Association, the American Judicature Society and former Supreme Court Justice Sandra Day O’Connor, who serves as the honorary chair of the Judicial Selection Task Force in Michigan. They tout the commission-based method, “the Missouri Plan,” as an alternative to the partisanship of judicial elections.

But to assume that it eliminates politics or results in a more balanced judiciary is erroneous.

Political scientists have studied judicial elections for quite some time, and plenty of empirical evidence to quantify the impact of elections is available. After going through that data, I have found the following:

Elections do not prompt voters to view judicial institutions as less legitimate. From 2008-09, professor James Gibson of Washington University conducted a series of survey experiments and found that while legitimacy concerns may be raised by particular campaigns, those concerns are not raised when candidates engage in policy talk, negative ads or other ordinary incidents of a judicial race.

There is no discernible difference in quality between judges who are elected and those who are appointed. Recently, law professors Stephen Choi, Mitu Gulati and Eric Posner found that there was no difference between elected judges and appointed judges in terms of quality and output of opinions. They also found that elected judges are no less independent than appointed judges.

Though the authors of the study were cautious in interpreting their findings, any fair reading suggests that elected judges are at least equal to appointed judges in quality and independence.

Campaign spending is key to providing voters with a meaningful choice. Despite the many criticisms of campaign spending, my research has shown that the more money challengers spend trying to unseat an incumbent, the better they perform with the electorate. Limiting campaign spending with strict campaign finance laws also limits competition and increases the advantage of incumbency.

The Michigan Supreme Court plays a very important role in the lives of Michiganians, impacting everything from property rights and business transactions to criminal policy and traditional family policy. So it is extremely important that voters trust that their judges are adhering to the rule of law.

To suggest that elections are unable to deliver a fair court is just not supported by the data. Michigan’s justices and judicial candidates face incentives to be more open, transparent and accountable than if they were being selected behind closed doors by an unelected and unaccountable nominating commission, where special interests and political insiders would dominate.

Chris Bonneau is a professor of political science at the University of Pittsburgh.