popular myths of the

8/7/2019 Popular Myths of the

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On the Cataclysm of Judicial Elections

and Other Popular Anti-Democratic Myths

Melinda Gann Hall

Professor and Distinguished Faculty

Michigan State University

Department of Political Science

303 South Kedzie Hall

East Lansing, MI 48824-1032Phone: 517.432.2380

Email: [email protected]

This essay was developed for roundtable presentations at the 2008 Meetings of the

Midwest Political Science Association and American Political Science Association,

and as a paper at the 2009 Whats Law Got to Do with It Conference at Indiana

University School of Law. For their comments and ongoing dialogue, I am grateful

to Chris Bonneau, Charles Geyh, and Matthew Streb. Of course, the views

expressed in this essay are entirely my own.


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A perfect storm of hardball TV ads, millions in campaign contributions and bare-

knuckled special interest politics is descending on a growing number of Supreme

Court campaigns. The stakes involve nothing less than the fairness and

independence of courts in the 38 states that elect their high court judges.

(Goldberg, Samis, Bender, and Weiss, 2005, vi).

A cataclysm in American state judiciaries is imminent, according to some of the

nations most prominent court reform organizations and legal scholars, in the guise of

competitive elections for the high court bench and the campaign activities that

accompany them. But are expensive, hard-fought elections really signaling the demise of

the integrity of state judiciaries and the publics acceptance of state judicial power?

In sharp contradistinction to the menacing characterizations of the democratic

process dominating public advocacy on this subject and the unrelenting attacks designed

to end judicial elections altogether or to impair their effectiveness, I argue that there is no

compelling evidence to suggest the need to replace democratic processes with

appointment schemes divorced from meaningful citizen participation. There are,

however, significant issues meriting attention where viewpoints grounded in empirical

reality would balance current doomsday rhetoric and promote a more measured dialogue

about the politics of staffing the bench.

Most critical is the need to examine the scientific record, or facts that should

already be in evidence but instead have been obfuscated or ignored. Remarkably,

empirical scholarship supports the case for electing judges and effectively challenges the

wisdom of replacing partisan elections with nonpartisan elections and the Missouri Plan.

These studies also provide tentative evidence that several of the dire predictions about the

prevailing political climate are likely overdrawn.

Consider the astonishing flip flop that has occurred in framing the judicial


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elections controversy. In the 1960s, when the movement against competitive judicial

elections began to achieve considerable momentum, partisan elections were being harshly

criticized for failing to fulfill theirraison d'tre of electoral accountability. The most

serious charges were that incumbents rarely were challenged or defeated, and that

citizens were disinterested and uninformed (e.g., Caufield 2007; Dubois 1980; Rottman

and Schotland 2001).

Today, attacks against judicial elections have intensified because incumbents are

facing stiff electoral competition and because voters are taking a keen interest in these

races. Underlying these renewed attacks on the democratic process is the fundamental

belief that campaign politics has deleterious effects on judges and courts.

In other words, the modern court reform movement initially criticized judicial

elections for failing to resemble elections to other important offices but now condemns

todays judicial elections because they do. And underlying this damned if they do,

damned if they dont approach is a very unflattering view of voters. In fact, voters now

are being cast as too unsophisticated to view judges through any kind of political lens

without losing confidence in state judiciaries. In essence, judicial reform advocates are

relegating the legitimacy of state courts to the widespread acceptance of discredited

myths about the apolitical nature of judging and the selection process.

At the same time, as political scientists empirically evaluate the basic assumptions

underlying criticisms of judicial elections (e.g., Baum 1987; Baum and Klein 2007;

Bonneau and Hall 2009; Hall 2001, 2007), many of these contentions are proving to be

overdrawn or incorrect. This is not surprising given the disjuncture in methods of analysis

that persist between the legal academy and political scientists, which in turn perpetuate


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strikingly different perceptions of judging. Political scientists, who embrace empiricism,

accept the intrinsically political nature of appellate court decision making (i.e., what is).

Yet legal academicians, who use logical reasoning and jurisprudential theories as primary

tools, emphasize whatshouldbe: judicial choices governed entirely by law.

Without question, legal scholars excel in conceptual clarity and logical modes of

reasoning. Unfortunately in the case of judicial elections, logic has produced conclusions

that are inaccurate or unsubstantiated. For example, it makes sense to assume that public

officials might favor their most generous contributors. However, in no way does this

mean that bias or influence peddling actually occurs, nor has any systematic evidence

about judges been produced to this effect. Nonetheless, because assumptions about the

corrosive effects of money were accepted as fact, advocacy from the legal community

now falls just short of zealotry in its condemnation of democratic politics.

On the other side of the aisle, political scientists are skilled in generating

theoretically robust hypotheses and testing them under stringent standards of scientific

validity and objectivity. With state judicial selection, however, political scientists have

bungled concepts, accepted at face value the same unverified and highly debatable

assumptions as the legal community, and steadfastly ignored the normative implications

of their work. Moreover, these shortcomings have been exacerbated by an almost single-

minded obsession with the United States Supreme Court, leaving the study of state courts

to a small though capable handful of scholars who now have produced important findings

fairly late in the game.

Bridging the significant chasm between legal scholars and political scientists

while addressing the shortcomings of both camps will facilitate a more careful dialogue


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about how best to select judges in the American states. Indeed, the striking absence of

facts derived from scientific studies on the part of the legal community, combined with

conceptual chaos and the lack of much of a research or advocacy role by political

scientists, have contributed mightily to an unchecked assault on judicial elections.

The Scientific Record on State Supreme Court Elections

There now is a substantial body of empirical work systematically evaluating state

supreme court elections,1 and the story is exciting from the perspective of democratic

politics. Moreover, these races differ dramatically on multiple dimensions, including

within and across states and by selection system. These variations strongly suggest that

simple answers based on anecdotal evidence or even rigorous studies of single states will

not be sufficient for the wide range of circumstances present in the American states.

An excellent illustration is citizen participation in supreme court elections,

measured as ballot roll-off. Overall, from 1990 through 2004, ballot roll-off averaged

22.9% (Bonneau and Hall 2009), which certainly explains why so many would question

the efficacy of judicial elections. However, comparisons across and within states reveal a

much more complex reality. Ballot roll-off ranged from 1.6% to 65.1% across elections,

and averaged from 12.5% (Alabama) to 59.2% (Wisconsin) across states (Bonneau and

Hall 2009). These differences of 47 to 64 percentage points are vivid reflections of the

extent to which voters can, and cannot, be mobilized and clearly do not point to a

consistently apathetic electorate.

Roll-off rates by selection system also are dissimilar. From 1990 through 2004,

roll-off in partisan elections averaged 14%, compared to 27% in nonpartisan elections


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and 26% in retention elections (Bonneau and Hall 2009). Thus, the differences in civic

engagement between partisan elections and the other election systems are pronounced.2

These various figures illustrate quite well the ways in which state supreme court

elections differ on a variety of dimensions. Political scientists attempting to explain these

and other intriguing patterns have moved beyond simple descriptions of a select set of

races to rigorous theoretically-derived multivariate models in which the wide range of

factors influencing these elections are controlled and alternative explanations are tested.

These studies have produced significant if not startling results that support the case for

electing judges.

Challengers in Supreme Court Elections

Far from being idiosyncratic, the decisions of challengers to enter supreme court

races reflect strategic thinking about the probability of winning and sensitivity to the

political climate (Bonneau and Hall 2003; Hall and Bonneau 2006, 2008). Particularly

vulnerable are unpopular incumbents. Justices are much more likely to draw challengers,

ceteris paribus, who won their previous elections by narrow margins or are appearing

before voters for the first time after being appointed. In fact, justices who never were

elected in the first place are highly likely to be challenged (Bonneau and Hall 2009). In

other words, judicial elections are not de facto appointment systems.

Also, challengers (both novice and experienced) are drawn into the electoral arena

by a variety of contextual factors, including ballot type (partisan versus nonpartisan),

electoral constituency (statewide versus district), and state partisan competition (Bonneau

and Hall 2003; Hall and Bonneau 2006, 2008). Specifically, statewide partisan elections,


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district-based nonpartisan elections, and political climates characterized by lively two-

party competition significantly increase the probability of challengers. Stated differently,

the choices that states have made about the fundamental rules of the game have a

resounding impact on the extent to which challengers subsequently engage.

Citizen Participation and Vote Choices

Voter apathy is not inherent in state supreme court elections (Baum and Klein

2007; Hall 2007, Hall and Bonneau 2008; Klein and Baum 2001). In fact, citizen

participation is driven primarily by factors that increase the salience of these races and

the information available to voters (Baum and Klein 2007; Hall 2007; Hojnacki and

Baum 1992). In fact, the electorate is stimulated to vote in supreme court elections by the

same factors that mobilize voters in non-judicial elections. Reduced to the most basic

element, voters vote when they have interest, information, and choice (Hall 2007,

1151).

Particularly important as agents of mobilization are partisan elections,

challengers, tight margins of victory, and well-financed campaigns (Baum and Klein

2007; Hall 2007; Hall and Bonneau 2008). Rather than being alienated by expensive

rough-and-tumble campaigns, voters embrace judicial smack-downs by voting in much

greater proportions than in less exciting contests. There simply are no behavioral

manifestations of a disaffected electorate stemming from these highly visible races.

Of course, voting serves little purpose if citizens are incapable of making

reasoned choices. However, studies of state supreme courts consistently conclude that the

electorate is fairly sophisticated. When choosing between candidates, voters differentiate


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between challengers who have experience as judges and those who do not (Hall and

Bonneau 2006). Likewise, voters favor appellate court judges as challengers over trial

court judges. Otherwise, electorates vote retrospectively on issues relevant to judges even

when partisan labels are not on the ballot (Hall 2001) and make specific issue-based

choices when enough information is provided (Baum 1987; Baum and Klein 2007;

Hojnacki and Baum 1992).

Beyond these studies, two fundamental tenets of political science illuminate this

issue: 1) partisanship is a rational basis upon which to vote, and 2) partisanship is an

excellent predictor of state supreme court justices decisions. Thus, even if the electorate

merely responds to partisan labels apart from candidate- or issue-based evaluations, these

choices still are substantively meaningful (e.g., Hall 2001, 2007).

The most recent affirmation of this principle in a non-judicial context is The

American Voter Revisited. Assessing the 2000 and 2004 presidential elections, Lewis-

Beck et al. (2008) describe the pronounced tendency for most Americans to vote largely

on the basis of partisanship, even for the most powerful office in the nation. In fact,

Lewis-Beck et al. (2008, 415) reiterate that the typical American voter shows little

political involvement, limited grasp of the issues, and not much ability to think in

coherent, ideological terms. However, American voters are far from fools because of

the power of the partisan choice (Lewis-Beck et al. 2008, 425).

Money, Money, Money

Rising campaign costs in state supreme court elections are widely regarded as one

of the most pressing threats to American state judiciaries. Without question, the cost of


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seeking office has increased for the state high court bench (Bonneau 2007), just as

campaign costs are escalating for other political offices. However, supreme court

campaign costs are not rising uniformly for all candidates or in all states but instead

reflect a variety of electoral contingencies: closeness of the race, value of the seat, and

the overall political and institutional climate (Bonneau and Hall 2009).

Critical among these is whether partisan labels are on the ballot. Contrary to

conventional wisdom, nonpartisan elections substantially increase the costs of seeking

office, ceteris paribus, thereby exacerbating pressures on judges to generate huge

campaign war chests (Bonneau and Hall 2009). Candidates in nonpartisan elections must

work hard to educate and mobilize voters when challengers are present and partisan cues

are absent. Overcoming the information deficit is formidable.

Moreover, there is no systematic evidence that state supreme court justices are at

the mercy of special interests and other high-rollers when their electoral fates are being

determined. Overall, supreme court elections resemble elections to non-judicial offices:

spending is important but is only one of many factors affecting how well candidates

perform (Bonneau 2007; Bonneau and Hall 2009; Hall and Bonneau 2006). Also,

campaign spending strongly favors incumbents (Bonneau 2007).

From a different perspective, money is essential for educating and mobilizing

voters. Without advertising and other forms of information dissemination, challengers

cannot present their credentials or discuss their opponents shortcomings. In this way,

money is a democratic necessity.


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Supreme Court Elections in Historical Perspective

Many of the negative descriptions of elections proffered by judicial reform

activists have proven to be exaggerated if not patently incorrect. One of the best

examples is the widely accepted myth that supreme court elections in the past were

sleepy affairs with an extraordinary incumbency advantage.

Consider, however, Dubois (1980) study of supreme court elections in twenty-

five non-Southern states from 1948 through 1974. In this epic work, Dubois (1980, 50)

classified the majority (51.3%) of partisan elections as competitive by the stringent

standard of having been won by 55% of the vote or less, although only 14.8% of

nonpartisan elections were. Likewise, Dubois (1980, 50) documented that only a small

minority (13.3%) of partisan races lacked challengers, compared to 50.7% of nonpartisan

elections.3 Finally, Dubois (1980, 109) reported that as a percentage of all partisan and

nonpartisan elections, defeat rates were, respectively, 19.0% and 7.5%. As a percentage

of incumbents serving during that period, defeat rates were 15.7% and 11.4%,

respectively.4 Consistent with later research, Dubois (1980) found that many of the losers

were appointees who had never been elected in the first place.

These incredible and certainly overlooked statistics are comparable to those

reported by Hall (2001) for 1980 through 1995. During this period, partisan and

nonpartisan elections were competitive (won by 55% of the vote or less) in, respectively,

35.6% and 25.4% of the races involving incumbents. Regarding contestation, incumbents

in partisan elections were challenged 61.1% if the time, reaching a high of 81.8% in

1994, compared to 44.2% in nonpartisan elections. With defeats, partisan elections

averaged 18.8% compared to nonpartisan elections at 8.6%.5


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Of course, we do not have systematic data on the types of campaigns that were

conducted in earlier years or the extent to which political messages were utilized. But it

simply is unimaginable that elections with frequent challengers, slim margins of victory,

and defeat rates as high as those dating back to 1948 would not have involved heated

campaigns in significant proportions of these races. It also is difficult to accept that such

activity, especially the defeats, would have been invisible to state electorates.

These facts were not unfamiliar to an astute group of political observers in the

1980s. Schotlands (1985, 78) iconic characterization of judicial elections as noisier,

nastier, and costlier was published twenty-five years ago. Indeed, after the 1986 and

1988 Ohio Supreme Court races, Hojnacki and Baum (1992, 944) described as

increasingly common those new style campaigns that make candidates and issues

far more visible than in the average judicial contest. Interestingly, Hojnacki and Baum

(1992, 945) appeared to welcome this development, noting that it is not just the most

emotional and dramatic issues in new-style campaigns that can reach voters effectively.

Under the right conditions, voters can respond to more prosaic issues such as tort law.

Even in the popular press, aLos Angeles Times editorial (Chen 1988, 1) written in

the aftermath of the defeats of three California Supreme Court justices in 1986 observed:

[T]he intense public focus on [the California] high-stakes battle has all butobscured a trend that, some now say, threatens the independence and themoral foundations of the nations judiciary. Throughout the country,judges increasingly are being forced to hit the campaign trail to raisehuge sums of money, often from special interest groups that have atangible stake in the outcome of the cases before the courts, generatingcountless free-spending judicial campaigns all over the country.

The article specifically mentioned thirteen states in which these expensive races were

taking place, or 34% of all states electing judges in 1988.


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For a comparative perspective, consider defeat rates for the United States House

of Representatives, United States Senate, and governorships from 1990 through 2004,

which were, respectively, 5.1%, 10.0%, and 18.9% (Bonneau and Hall 2009, 86). As

these figures illustrate, partisan supreme court elections resemble gubernatorial elections

while nonpartisan elections look like Senate races, but both are more competitive than the

House of Representatives, the quintessential democratic institution. This makes eminent

sense. Relatively speaking, only a select handful of people ever hold these important

offices and opportunities to accede to office are rare. Nonpartisan elections are somewhat

less competitive than partisan elections because of the difficulty of overcoming the

incumbency advantage when partisan labels are absent. Even so, these races were, on

average, more competitive than House seats going all the way back to 1948.

In sum, supreme court elections have been among the most competitive in

American politics. While campaigns in these earlier races would have been geared

toward newspapers, radio, and other traditional modes of information dissemination, it

seems unlikely that these elections went entirely unnoticed by voters or were utterly

devoid of campaigning by judges, challengers, political parties, or organized interests.

Remarkably, there is no convincing evidence whatsoever that states historically

experiencing highly competitive supreme court elections are suffering crises in their

judiciaries. Stated well in Siefertv. Wisconsin (2009, 40), [o]ne would think that if

partisan behavior in judicial elections were as detrimental to the integrity of the judiciary

so many states could not continue to maintain that system for so long, sometimes more

than 150 years. Even worse, the purported fixes to partisan elections - removing partisan

labels (nonpartisan elections) and precluding challengers (retention elections) rendered


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into self-fulfilling prophecies many of the most negative aspects of judicial elections,

including reluctant challengers, voter disinterest, expensive campaigns, and interest group

involvement (Hall 2001, 2007; Hall and Bonneau 2006, 2008).

The Shaky Record of the Judicial Reform Movement

Unfortunately, inaccuracy has plagued the modern court reform movement. In

addition to mischaracterizing supreme court elections historically, reformers insisted,

among other things, that nonpartisan and retention elections would enhance the quality of

the bench, provide a better basis for selecting nominees than partisanship, and remove the

stains of partisan politics. None of these has proven true. Judges do not vary in tangible

substantive qualifications among selection systems (Glick and Emmert 1987; Hurwitz

and Lanier 2008); removing partisan labels suppresses voting, produces idiosyncratic

outcomes, and raises the cost of seeking office (Hall 2001, 2007; Hall and Bonneau

2008); and partisanship persists in nonpartisan and retention elections (e.g., Glick 1978;

Hall 2001; Squire and Smith 1988; Streb 2007).

In fact, elected supreme court justicesperformbetterthan justices selected by

other methods in opinion writing, opinion quality, and following federal precedent (Choi,

Gulati, and Posner 2007). Regarding their decisions, justices chosen in partisan elections

are the most independent, voting less often with their partisan colleagues.

Of course, some of the latest predictions concern the catastrophic consequences of

attack advertising andRepublican Party of Minnesota v White (2002). The basic claim is

that judicial campaigns are becoming political free-for-alls in which qualified incumbents

are imperiled by negative advertising and politically charged discourse, which in turn


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undermines public trust and judicial legitimacy. Indeed, White is widely regarded as a

watershed, fundamentally altering the nature of judicial campaigns. As Caufield (2007,

36) asserts:

Judicial elections, once unremarkable, quiet, and dignified affairs, areincreasingly becoming political. Judicial candidates are frequently attacked inways that were previously reserved for those competing for legislative orexecutive positions In many states, the extent of change is directly related to White.

We already have observed the competitive quality of state supreme court elections

in the post-World War II era that raises doubts about Caufields characterization.

Nonetheless, these latest assertions about White and negative campaigning are testable

hypotheses.

The White Decision and Electoral Competition

To assess whetherWhite has reduced the incumbency advantage or otherwise

intensified competition, we must examine rates of defeat and contestation in recent

elections. In 2006, the defeat rate in partisan supreme court elections was at its lowest

(8.3%) since 1984, rising only slightly in 2008 (to 9.1%). Likewise, the challengers in

partisan elections have been a constant since 1996, but contestation rates in nonpartisan

elections declined sharply from 2004 to 2006. Contestation was 72% in 2004 but was

only 44.4% in 2006, rising to just 50.0% in 2008. In fact, we would have to go back to

1990 to find contestation rates in nonpartisan elections below the levels of the post-White

period. Interestingly, defeat rates in nonpartisan elections increased in 2008 to the levels

of the 1980s, despite the fact that far fewer incumbents were challenged. However, the


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defeat rate in nonpartisan elections in 2004 (4.0%) was lower than any other year since

1980 except 1998 (0%), while 2006 (7.4%) was about the same as 2000 (7.7%).

As these various statistics indicate, except for the nonpartisan defeat rate in a

single year, elections have become considerably less competitive since White, and these

surprising trends have been confirmed by more rigorous multivariate analyses (Hall and

Bonneau 2008; Peters 2009). Likewise, interest group activity in supreme court

campaigns has declined since White (Hale, McNeal, and Pierceson 2008). White simply

has not caused challengers or interest groups to rush into the electoral arena or produced

any diminution of the incumbency advantage.

White, Attack Advertising, and Public Perceptions of Courts

Even ifWhite has had no immediate electoral consequences for incumbents, the

decision may be changing the tone of judicial campaigns, especially in states not using

partisan elections or less restrictive codes of conduct. Also, campaign costs are

escalating, particularly with the rise of television advertising. Emerging from these trends

is the charge that attack advertising will exact a disastrous toll on citizens perceptions of

courts.

As Justice at Stake (Rutledge and Nyren 2007) asserts:

Across America, political partisans and special interest groups havetransformed state judicial elections into nasty, expensive brawls driven byideology, hot-button political issues and big money. Since 2000, candidatesin the 22 states that use contested elections to choose their state high courtshave raised over $150 million. Twenty of the 22 states have seen broadcasttelevision advertisements, with many of these ads being aired by interestgroups attacking judges over single decisions.

Are attacks metastasizing across the nation? Consider Figure 1, which displays


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attack advertising by race in 2002, 2004, and 2006.6 In fact, negative advertising by

contest occurs only in a small fraction of supreme court elections and declined 29% from

2004 to 2006. The proportion of races with attack ads in 2002, 2004, and 2006 was,

respectively, 13.5%, 14.9%, and 10.6%.

(Figure 1 Goes About Here)

Even so, if attack advertising diminishes judicial legitimacy or other positive

perceptions of courts, even a small dose could be undesirable. On this issue, Gibson

(2009) has produced unequivocal evidence: in states electing judges, neither policy talk

nor attack advertising has adverse effects on public confidence. Gibsons (2009)

conclusions are consistent with other studies usingJustice at Stakes own national public

opinion data. Kelleher and Wolak (2007) failed to discern any differences in public

confidence between states using partisan elections and other methods of judicial

selection, ceteris paribus. Using the same data but different modeling strategy, Cann and

Yates (2008) show that only the most politically uninformed in partisan elections lack

confidence, rendering information a powerful antidote to negative perceptions and

pointing to other causes of their disaffection.

These various conclusions are strikingly similar to studies of legislative and

executive elections. In a recent article, Jackson, Mondak, and Huckfeldt (2009) review

the scholarly record and then assess for themselves whether attack advertising in

congressional elections diminishes public approval or political efficacy. As they

summarize effectively, the search for evidence against negative advertisements has

yielded nothing (Jackson, Mondak, and Huckfeldt 2009, 63). Indeed, Geer (2006) argues


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that that negative advertising in presidential elections actually has positive consequences

by enriching the information environment.

Finally, some reform activists assert that public opinion polls, especially those

generated by Justice at Stake, show strong public support for ending competitive

elections and for the harmful effects of campaigning. However, these polls actually

substantiate the opposite. Minnesota is an excellent case in point. Justice at Stake (2008)

shows that voters7 agree that the following terms describe Minnesota courts: impartial

(78%), fair (82%), and honest and trustworthy (80%). At the same time, sizeable

proportions believe that courts are swayed by public opinion (47%), controlled by special

interests (41%), favor contributors (47%), and are political (69%). Even more so, a clear

majority (59%) thinks that campaign contributors influence decisions a great deal or

some of the time, and only a small fraction (5%) believes not at all.

In the same manner, voters in Minnesota overwhelmingly consider voting on

judges to be important (92%) and view the governors power to appoint judges as a threat

to impartiality (55%). Yet they also view contested elections (49%) and campaign

advertising (74%) as threats.

Questions about biased question wording and interviewer effects aside, these

interesting juxtapositions illustrate the cognitive dissonance often present in public

opinion but hardly support the case against elections. Indeed, these results show that even

when voters recognize the presumed pitfalls of elections, they overwhelmingly have

confidence in courts and wish to elect them, viewing gubernatorial appointment as a

greater threat than contested elections.8 In short, confidence does not appear to be

dependent upon legal myths about judging, and there is no groundswell to eradicate


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elections.

In this regard, one wonders if court reform advocates watch the news. For

example, when discussing Justice Souters retirement, CNN legal correspondent Jeffrey

Toobin described the United States Supreme Court as consisting of four liberals (Stevens,

Ginsburg, Breyer, Souter), four conservatives (Roberts, Scalia, Thomas, Alito), and one

swing voter (Kennedy). Mr. Toobin also emphasized how President Obama would seek a

like-minded replacement and fellow Democrat.9 Similar discussions could be heard

across the nation in broadcast and print media. Thus, even with federal judges who are

not elected, Americans are sensitized to the fact that judging is a political art as well as a

legal science and that partisanship plays a definitive role in the selection process. In this

regard, it does not appear that citizens must see judges as entirely apolitical in order to

view them positively. Indeed, the Supreme Court ranks among the most highly regarded

political institutions in the world.

Another Perspective on Electing Judges

With the current revisionist perspective recognizing the efficacy of judicial

elections, the disagreement really has become a dispute over the projected impact of

competitive elections on the American judiciary. According to prevailing wisdom,

challengers are bad, campaigning is bad, and electoral defeats are bad, all because they

impair the independence and legitimacy of courts.

But consider an alternative view. In a nutshell, supreme court elections are almost

the prototype of what elections should be in the United States. These races are

competitive, interesting, and reflect a series of rational choices by challengers and voters.


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Also, to the extent that electoral pressures force judges to abandon their own agendas in

favor of the rule of law, courts are strengthened and the public good is enhanced. Finally,

there is little evidence that voters must see judges as above the political fray, particularly

in states hosting decades of heated elections. The assumption that judges must not

campaign or engage in other forms of electoral politics may be another ivory tower myth.

Judicial politics scholarship offers a basic set of propositions that informs this

discussion. First and foremost, courts are powerful institutions resolving some of the

most significant and divisive issues on the American political agenda. Second, in

deciding these questions, judges have discretion and political preferences that influence

their choices.10 Third, like other political actors, judges are constrained in their ability to

make decisions solely on the basis of their preferences. Among these constraints are state

and federal law, their own ambitions, and the political environment (e.g., Brace and Hall

1997; Hall 1987, 1992, 1995; Langer 2002; Peters 2009; Savchak and Barghothi 2007).

Thus, the very precepts of judicial politics scholarship discard traditional notions

that state supreme court justices are tightly constrained by law and instead recognize their

policymaking role and close connection to public preferences by virtue of the federal

system. Accordingly, it is not unreasonable to suggest that these judges, like other public

officials, should have the exercise of that discretion held up for public scrutiny.

In order to know the political science literature but still reach an inapposite

conclusion, one must argue that judges and courts simply are different. The argument

would go something like this: the incumbency advantage is sacred (i.e., judges are

entitled among public officials and should never have their decisions evaluated), judges

should act without constraint (i.e., individual preferences, including sharp deviations


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from law, should prevail), and voters must not be exposed to information that might

cause them to conclude that judges are political actors (i.e., ignorance is bliss, or perhaps

voters are stupid). There is an additional assumption: that popular preferences are

incompatible with the rule of law.

Conceptual Clarity as a Starting Point

Somehow we have gotten lost in a rhetorical muddle about independence and

accountability while losing sight of the importance of the rule of law. Accountability can

be defined in many ways but in its most basic form is a formal arrangement where

citizens control who holds office. Accountability also can occur in the form of electoral

competition, wherebychallengers take on incumbents and the electorate chooses without

deferring to incumbency.

Unfortunately in modern parlance, independence has been reduced merely to the

state of not having to seek voter approval. This simplistic formula is lodged in

contemporary rhetoric: defining independence as freedom from elections and then

decrying that the integrity of the judiciary is being jeopardized when any form of

electoral politics is present. Even worse, this tautological loop tells us little without

providing evidence of how these negative effects occur and how any proposed solutions

will correct the problem without introducing others that are worse.

A more complex view relates to the judicial decisions, particularly whether judges

should adjust their behavior to constituency preferences in matterswhere they have

discretion. Of course, in many situations case facts and law are clear and in these

circumstances judges simply should apply existing rules to the cases being decided. The


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extent to which judges will have discretion will depend on a number of factors, including

the type of court, facts of the case, and the issues being litigated.

But when law is not a definitive guide, the accountable judge would follow

constituency preferences when those preferences are known while the independent judge

would vote her own preferences. In this way, the accountable judge would be practicing a

form of what the legal academy labels popular constitutionalism. Alternatively, the

independent judge would be constrained by no other actor.

On this issue, a critical point is this: the extent to which a judge surrenders to

partisan pressures, political ambition, or any other force is entirely within her own

control. While there may be unique pressures on judges who are elected rather than

appointed, it nonetheless is the case that each judge must decide which constituencies she

represents, even if that choice is at her own electoral peril. In this manner, independence

and accountability are not inherently antithetical to each other.

Moreover, whether these strategic calculations are good or bad depends on the

relationships between the justices preferences, public sentiment, and the rule of law.

When public sentiment and the rule of law coincide, curbing the blatant display of

personal preferences should enhance judicial legitimacy. Evidence on this score is

limited, but studies of the death penalty and abortion in state supreme courts support the

conclusion that public sentiment forced compliance with law rather than deviation from

it. Strategic voting in accordance with public preferences is evidenced by liberal justices

in states with the death penalty (e.g., Hall 1987, 1992, 1995) and by conservative justices

in states with liberal abortion laws (Brace, Hall, and Langer 1999). Stated differently, we

cannot always accurately assume that public preferences represent fiat instead of law or


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that judges unchecked preferences are any less dangerous than the threat of majority

tyranny. Also, public pressures do not always take an anti- civil rights or liberties form.11

The same arguments can be offered about impartiality. Some advocates and

scholars rightfully are concerned that judges will be swayed to support the interests of

wealthy contributors. But again, whether a judge eschews impartiality is entirely within

her control. Moreover, existing laws already govern these situations. Influence peddling

is a serious breech of ethics if not a criminal act. And there certainly are alternatives for

handling conflicts of interest that do not require eliminating judicial elections.

Fundamentally, accountability and independence are now seen as mutually

exclusive goals rather than means to an end. Further, independence and impartiality

frequently are used interchangeably. Thus, one of the consequences of conceptual

imprecision is the tendency to equate the absence of electoral pressures not only with

independence but also with impartiality. An otherwise excellent article illustrates this

point well. Savchak and Barghothi (2007, 408) opine that [t]o the extent that merit

system judges become more responsive to the public as they face impending retention

elections, their impartiality is compromised while accountability is enhanced.

As discussed, electoral pressures producing decisions consistent with public

opinion do not necessarily imply a lack of impartiality, especially if public opinion causes

a judge to follow the law instead of personal preferences. Similarly, the absence of public

pressure in no way suggests that judges are, by default, impartial or independent. Geyh

(2008, 86) expertly makes this point by identifying two primary aspects of independence:

1) the ability of courts to act without encroachments from the legislative and executive

branches and 2) the ability of courts to be free from threats or intimidation that could


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interfere with their ability to uphold the rule of law. Thus, the absence of an electoral

connection hardly guarantees that other, perhaps more serious pressures will not befall

judges, or that their own personal preferences left unfettered will produce desirable

results. Indeed, there must be a delicate balance to ensure that judges are independent

enough to follow the facts and law without fear or favor, but not so independent as to

disregard the facts or law to the detriment of the rule of law and public confidence in the

courts (Geyh 2008, 86). Removing democratic processes will not guarantee

independence or impartiality but merely provides judges and courts with independence

from the electorate.

Of course, there are other definitions of accountability and independence. But as

stated aptly, independence is only a useful term if it allows observers to objectively

determine whether it is present or not (Tiede, 2006: 133). This same precept certainly

applies to accountability and impartiality. Thus, conceptual clarity is paramount.

Alternative Selection Schemes

For decades, judicial reform advocates have campaigned to replace partisan

elections for selecting state court judges with nonpartisan elections or the Missouri Plan.

Today the goal is to end judicial elections altogether. As the American Bar Association

(2003, viii) contends:

Whatever its historic rationale there can no longer be justification forcontested judicial elections accompanied by attack media advertising thatrequire infusions of substantial sums of money. These contested electionsthreaten to poison public trust and confidence in the courts by fostering theperception that judges are less than independent and impartial, that justice isfor sale, and that justice is available only to the wealthy, the powerful, orthose with partisan influence.


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Specifically, the American Bar Association (ABA) recommends that governors appoint

judges from lists prepared by nonpartisan selection commissions for a single term of

office or to a mandatory retirement age. The ABA Plan explicitly rejects legislative

confirmation (ABA 2003, 70-71). This system would be unlike any other currently

operating in the American states and certainly the least democratic.12

Presently twelve states (Connecticut, Delaware, Hawaii, Maine, Massachusetts,

New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Vermont,

Virginia) use appointments to staff their high court benches.13 Generally, governors make

these nominations but state legislatures in South Carolina and Virginia choose judges.

Similarly, appointments generally must be confirmed by one or both houses of the state

legislature except in Massachusetts and New Hampshire where appointments are

approved by an elected Executive Council. Regarding tenure, only Massachusetts, New

Jersey, and Rhode Island provide lifetime terms. In the remaining nine states, justices are

appointed for terms ranging from five years (New Hampshire) to fourteen years (New

York), and any subsequent terms must be approved by a judicial commission (Hawaii),

governor, or state legislature.

In sum, nine states currently use appointment systems in which supreme court

justices must regularly seek approval from the executive or legislative branch to continue

in office. Needless to say, these courts are far from independent. As studies (Brace, Hall,

and Langer 1999; Langer 2002) have demonstrated, justices subject to reappointment by

the other branches of government act strategically to avoid retaliation. These justices

infrequently docket cases presenting constitutional challengers to state law and rarely

invalidate legislation, ceteris paribus. In other words, appointment systems with fixed


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terms impair judicial review and undermine the system of separation of powers.

Despite an obsession with judicial independence, neither the ABA nor any other

court reform organization is challenging these appointment schemes or seeking to replace

them with the ABA model. It is emphatically clear that the primary goal is independence

from the electorate.

Historically, the ABAs plan brings us full circle. Initially, judicial elections were

a reform to appointment systems, to guard against encroachment from the legislative and

executive branches and to give citizens a voice against arrogant and incompetent judges

(Sheldon and Maule 1997). The ABA plan corrects the problems associated with judicial

elections albeit in an extreme way and avoids separation-of-powers and reappointment

issues, but the plan does little to guarantee the rule of law. Stated well in Siefertv.

Alexander(2009, 80), [a]lthough many in the legal community demonize judicial

elections and exalt a system of appointment, a merit selection process has its own flaws

and is no guarantee that the judiciary will be free from partisan bias or the perception of

it. Moreover, the ABA plan precludes citizen participation even in the indirect form of

elected representatives confirming nominations. There also are no effective mechanisms

for removing judges who implement their own political agendas. While judges can be

removed for obvious misconduct or criminal behavior, they are not subject to sanction for

making wildly unprincipled, biased, or foolish decisions. In short, the ABA plan is no

miracle cure for the ills of judicial elections and may create a more devastating crisis of

legitimacy than competitive elections ever could.


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Judicial Elections are Uniquely American

Reform advocates often point to the fact that electing judges is unique to the

United States. This is because few nations in the world manifest such a distinct

confluence of institutional arrangements: constitutional democracy, separation of powers

with checks and balances, judicial review, common law, and federalism. Judges who act

within this unusual configuration have extraordinary power and discretion that judges in

other nations simply do not share. Critical among these structures is federalism, which

guarantees fundamental rights and freedoms at the national level while promoting

laboratories of democracy in the states. Given the close connection between state

governments and citizen preferences and the stringent guarantees of civil rights and

liberties at the national level, the practice of electing judges emerged as an albeit

imperfect tool for insulating state judiciaries from legislative or executive encroachment

while giving citizens a voice in the exercise of judicial power.

A New Road Ahead for Legal Scholars and Political Scientists

Political scientists and legal scholars are in an excellent position to work together

to provide balance to the public dialogue and to separate fact from political distortion.

Even if the case for electing judges is not convincing to some, there still is an urgent need

to integrate any proposed solutions with an overall assessment of what the pitfalls of the

alternatives might be. In other words, advocacy should focus on the advantages and

disadvantages of each system and not just on the negative aspects of elections.

Moreover, reforming judicial elections should be part of the nations attention to


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the problems plaguing elections generally. Concerns about the deleterious effects of

money are not limited to judicial elections yet one scarcely can imagine condemning

legislative or executive elections. We need to match solutions to problems and stop the

hyperbolic tendency to insist that judicial elections end when complications arise.

Campaign reforms in many shapes are being considered and may prove to be effective

antidotes to some the prevailing ills of judicial elections.

Of critical concern is the seeming conflict of interest created when wealthy

contributors appear as counsel or direct parties in litigation. In fact, this impropriety or

seeming impropriety is perhaps the most valid point of legal scholars and public

advocates today. Recently, Gibson (2009) has presented some highly tentative evidence

that perceptions of impropriety may negate citizens perceptions of impartiality in courts

andlegislatures.14 How best to mitigate this will require careful thought and creative

solutions but there are options short of ending elections altogether. The United States

Supreme Courts decision in Caperton v.A.T. Massey Coal Company (2009) is a start.

However, much more work, particularly from the legal academy, is needed to devise

effective solutions like revised recusal standards and campaign finance laws.

A sharper empirical focus on the causes and consequences of state judicial

legitimacy also is urgent. While we might reasonably posit that perceptions of

impropriety are critical to state judicial legitimacy, these assertions are largely untested.

Of course, the evidence mentioned earlier about the historically competitive nature of

state supreme court elections and the absence of any identifiable crises in state judiciaries

today must be integrated into this discussion. However, as a scientific matter we simply

do not know which factors determine state court legitimacy and whether brief events like


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campaigns, which occur within a complicated political context, can have a direct impact,

for what duration, and with what consequences. We also must remind ourselves that

elections are perhaps the most powerful legitimacy-conferring institutions in the world.

Finally, we must acknowledge that there is no perfect system for staffing the

bench. Appointive systems can be plagued by elitism, cronyism, and intense partisanship

(e.g. Dimino 2004; Epstein and Segal 2005). Legislative selection systems can manifest

these same symptoms and inhibit judicial review (Brace, Hall, and Langer 1999; Langer

2002). There simply is no method for choosing judges that remains immune to politics.

Each selection system has advantages and disadvantages and, in large measure, reflects

underlying preferences about who should control access to the bench and monitor judicial

performance. The issues are enormously complex and challenging, but the nation

deserves a much more careful and balanced discussion of these alternatives than what

currently is being offered.


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Endnotes

1 This discussion is limited to state supreme courts for reasons: 1) very little scholarshipexists on other courts, and 2) state supreme court elections are where the effects of

expensive, highly competitive campaigns should be most pronounced.2 Retention elections are notreally elections in most respects. No incumbents weredefeated from 1996 to 2005, only 7 of 434 (1.6%) incumbents were defeated from 1980-2008, and the average vote from 1980 through 2006 to retain incumbents was 72.1%.However, this extraordinary incumbency advantage is not because these judges arebetter (e.g., Hurwitz and Lanier 2008).

3 These statistics were calculated using Table 3 in Dubois (1980, 50).

4 These statistics were calculated using Tables 3 and 13 in Dubois (1980, 50 and 109).

5 Open seat elections are intensely competitive, whether partisan or nonpartisan. Theseraces consistently draw challengers and are won by narrow margins (Hall 2001).

6 The data in Figure 1 are from the Brennan Center (http://www.brennancenter.org),which reports and categorizes television ads by tone: attack, promote, or contrast.

7 These figures were derived by combining the top two categories for each response, suchas very well and well, strongly agree and agree, very important andimportant.

8 Respondents expressing confidence or a great deal of confidence in courts, judges, thegovernor, and the state legislature were, respectively, 84%, 76%, 56%, and 58%.Minnesotans have considerably higher confidence in their judiciary than in the otherbranches of government, despite any problems identified with elections or campaignpolitics.

9 The CNN interview with Jeffrey Toobin aired on May 26, 2009, at about 9:53 am EST.

10Beginning with the legal realists and path-breaking scholars like C. Herman Pritchett

and Glendon Schubert, political scientists have challenged the validity of normativeaccounts of judging as impartial and closely bound by law. In studies of the United StatesSupreme Court, several generations of scholars have established the primacy of thejustices preferences in voting. Although critics assert that arguments are overdrawnabout the ability to decide without constraint, evidence is overwhelming that privateattitudes . . . become public law in the nations highest court. Studies of other federaland state courts also have documented the importance of preferences, as well as thepolitical and legal context.


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11The 2008 defeat of Chief Justice Elliott Maynard of the West Virginia Supreme Court

illustrates well how voters have managed judicial impropriety. Voters ousted ChiefJustice Maynard after photographs emerged of him on the French Riviera with DonBlankenship, CEO of Massey Energy. At the time, Massey Energy had an appeal pending

before the Court, which later was decided in the companys favor, overturning a verdictof $76.3 million (http://judgepedia.org/index.php/Elliott_Mayard). In that case, ChiefJustice Maynard voted in favor of Massey Energy in a closely divided decision.

12 The American Bar Association Commission on the 21st Century Judiciarys reportJustice in Jeopardy was adopted by the House of Delegates at their 2003 Annual Meetingin San Francisco (http://www.abanet.org/judind/jeopardy/), last visited May 13, 2009.

13 I collected this information in January 2009 from each states webpage.

14 Gibson (2009) generated these findings using experimental vignettes embedded in a

survey. However, as with all positive findings in experiments, we must be very cautious.Most significantly, experiments lack real world validity. Thus, while contributions mayaffect citizen perceptions under highly controlled conditions, we now must ascertainwhether these effects occur under normal circumstances, for what duration, and withwhat consequences.


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Figure 1

Source: Brennan Center for Justice (http://www.brennancenter.org)

popular myths of the

Documents