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58 Duke L.J. 1589 (2008-2009)
Are Appointed Judges Strategic Too

handle is hein.journals/duklr58 and id is 1605 raw text is: ARE APPOINTED JUDGES STRATEGIC TOO?
JOANNA M. SHEPHERDt
ABSTRACT
The conventional wisdom among many legal scholars is that
judicial independence can best be achieved with an appointive
judiciary; judicial elections turn judges into politicians, threatening
judicial autonomy. Yet the original supporters of judicial elections
successfully eliminated the appointive systems of many states by
arguing that judges who owed their jobs to politicians could never be
truly independent. Because the judiciary could function as a check
and balance on the other governmental branches only if it truly were
independent of them, the reformers reasoned that only popular
elections could ensure a truly independent judiciary. Using a data set
of virtually all state supreme court decisions from 1995-1998, this
Article provides empirical support for the reformers' arguments; in
many   cases, judges seeking  reappointment vote even   more
strategically than judges seeking reelection. My results suggest that,
compared to other retention methods, judges facing gubernatorial or
legislative reappointment are more likely to vote for litigants from the
other government branches. Moreover, judges increasingly favor
government litigants as their reappointments approach, which is
consistent with the judges voting strategically to avoid reappointment
denials from the other branches of government. In contrast, when
these judges are in their last term before mandatory retirement, the
effects disappear; without retention concerns, these judges are no
more likely to vote for government litigants than other judges. My
empirical evidence suggests that elective systems are not the only
systems that produce bias; appointive systems also threaten judicial
independence.

Copyright © 2009 by Joanna M. Shepherd.
t Associate Professor of Law, Emory University School of Law.

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