Documentos de Académico
Documentos de Profesional
Documentos de Cultura
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 “What’s 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.
“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).
nation’s 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 public’s acceptance of state judicial power?
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
reality would balance current doomsday rhetoric and promote a more measured dialogue
Most critical is the need to examine the scientific record, or facts that should
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
Consider the astonishing “flip flop” that has occurred in framing the judicial
2
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 their raison d'être 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
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
today’s judicial elections because they do. And underlying this “damned if they do,
damned if they don’t” 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
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
3
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 what should be: 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
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
Bridging the significant chasm between legal scholars and political scientists
while addressing the shortcomings of both camps will facilitate a more careful dialogue
4
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
supreme court elections,1 and the story is exciting from the perspective of democratic
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.
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
Roll-off rates by selection system also are dissimilar. From 1990 through 2004,
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
and other intriguing patterns have moved beyond simple descriptions of a select set 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.
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
Also, challengers (both novice and experienced) are drawn into the electoral arena
electoral constituency (statewide versus district), and state partisan competition (Bonneau
and Hall 2003; Hall and Bonneau 2006, 2008). Specifically, statewide partisan elections,
6
the choices that states have made about the fundamental rules of the game have a
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).
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
greater proportions than in less exciting contests. There simply are no behavioral
reasoned choices. However, studies of state supreme courts consistently conclude that the
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;
Beyond these studies, two fundamental tenets of political science illuminate this
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
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
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
8
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
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
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
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,
cannot present their credentials or discuss their opponents’ shortcomings. In this way,
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
five non-Southern states from 1948 through 1974. In this epic work, Dubois (1980, 50)
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
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.
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
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
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, a Los 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 but
obscured a trend that, some now say, threatens the independence and the
moral foundations of the nation’s judiciary. Throughout the country,
judges increasingly are being forced to hit the campaign trail – to raise
huge sums of money, often from special interest groups that have a
tangible stake in the outcome of the cases before the courts, … generating
countless free-spending judicial campaigns all over the country.
The article specifically mentioned thirteen states in which these expensive races were
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
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
seems unlikely that these elections went entirely unnoticed by voters or were utterly
experiencing highly competitive supreme court elections are suffering crises in their
judiciaries. Stated well in Siefert v. 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
into self-fulfilling prophecies many of the most negative aspects of judicial elections,
including reluctant challengers, voter disinterest, expensive campaigns, and interest group
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;
In fact, elected supreme court justices perform better than 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.
attack advertising and Republican 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
13
undermines public trust and judicial legitimacy. Indeed, White is widely regarded as a
36) asserts:
We already have observed the competitive quality of state supreme court elections
in the post-World War II era that raises doubts about Caufield’s characterization.
Nonetheless, these latest assertions about White and negative campaigning are testable
hypotheses.
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
14
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
Even if White 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.
Are attacks “metastasizing” across the nation? Consider Figure 1, which displays
15
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,
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. Gibson’s (2009)
conclusions are consistent with other studies using Justice at Stake’s 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
executive elections. In a recent article, Jackson, Mondak, and Huckfeldt (2009) review
the scholarly record and then assess for themselves whether attack advertising in
summarize effectively, “the search for evidence against negative advertisements has
yielded nothing” (Jackson, Mondak, and Huckfeldt 2009, 63). Indeed, Geer (2006) argues
16
that that negative advertising in presidential elections actually has positive consequences
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.
judges to be important (92%) and view the governor’s power to appoint judges as a threat
to impartiality (55%). Yet they also view contested elections (49%) and campaign
Questions about biased question wording and interviewer effects aside, these
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
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
17
elections.
In this regard, one wonders if court reform advocates watch the news. For
example, when discussing Justice Souter’s 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
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
elections, the disagreement really has become a dispute over the projected impact of
challengers are bad, campaigning is bad, and electoral defeats are bad, all because they
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.
18
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
19
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
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, whereby challengers take on incumbents and the electorate chooses without
deferring to incumbency.
state of not having to seek voter approval. This simplistic formula is lodged in
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 matters where 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
20
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
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
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
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
21
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
exclusive goals rather than means to an end. Further, independence and impartiality
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
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
22
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
determine whether it is present or not” (Tiede, 2006: 133). This same precept certainly
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
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
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
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),
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
24
terms impair judicial review and undermine the system of separation of powers.
Despite an obsession with judicial independence, neither the ABA nor any other
them with the ABA model. It is emphatically clear that the primary goal is independence
Historically, the ABA’s 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
issues, but the plan does little to guarantee the rule of law. Stated well in Siefert v.
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
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
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
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
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.
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
seeming impropriety is perhaps the most valid point of legal scholars and public
advocates today. Recently, Gibson (2009) has presented some highly tentative evidence
and legislatures.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 Court’s 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.
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
27
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
Endnotes
1
This discussion is limited to state supreme courts for reasons: 1) very little scholarship
exists 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 not really elections in most respects. No incumbents were
defeated 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 are
“better” (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. These
races 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, such
as “very well” and “well”, “strongly agree” and “agree”, “very important” and
“important.”
8
Respondents expressing confidence or a great deal of confidence in courts, judges, the
governor, and the state legislature were, respectively, 84%, 76%, 56%, and 58%.
Minnesotans have considerably higher confidence in their judiciary than in the other
branches of government, despite any problems identified with elections or campaign
politics.
9
The CNN interview with Jeffrey Toobin aired on May 26, 2009, at about 9:53 am EST.
10
Beginning with the legal realists and path-breaking scholars like C. Herman Pritchett
and Glendon Schubert, political scientists have challenged the validity of normative
accounts of judging as impartial and closely bound by law. In studies of the United States
Supreme Court, several generations of scholars have established the primacy of the
justices’ preferences in voting. Although critics assert that arguments are overdrawn
about the ability to decide without constraint, evidence is overwhelming that “private
attitudes . . . become public law” in the nation’s highest court. Studies of other federal
and state courts also have documented the importance of preferences, as well as the
political and legal context.
29
11
The 2008 defeat of Chief Justice Elliott Maynard of the West Virginia Supreme Court
illustrates well how voters have managed judicial impropriety. Voters ousted Chief
Justice Maynard after photographs emerged of him on the French Riviera with Don
Blankenship, CEO of Massey Energy. At the time, Massey Energy had an appeal pending
before the Court, which later was decided in the company’s favor, overturning a verdict
of $76.3 million (http://judgepedia.org/index.php/Elliott_Mayard). In that case, Chief
Justice Maynard voted in favor of Massey Energy in a closely divided decision.
12
The American Bar Association Commission on the 21st Century Judiciary’s report
Justice in Jeopardy was adopted by the House of Delegates at their 2003 Annual Meeting
in San Francisco (http://www.abanet.org/judind/jeopardy/), last visited May 13, 2009.
13
I collected this information in January 2009 from each state’s 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 may
affect citizen perceptions under highly controlled conditions, we now must ascertain
whether these effects occur under normal circumstances, for what duration, and with
what consequences.
30
References
American Bar Association Commission on the 21st Century Judiciary. 2003. Justice in
Baum, Lawrence. 1987. “Explaining the Vote in Judicial Elections: the 1984 Ohio
Baum, Lawrence and David Klein. 2007. “Voter Responses to High-Visibility Judicial
Campaigns.” In Running for Judge: The Rising Political, Financial, and Legal Stakes
of Judicial Elections, Matthew Streb, ed. New York: New York University Press.
Bonneau, Chris W. and Melinda Gann Hall. 2003. “Predicting Challengers in State
Supreme Court Elections: Context and the Politics of Institutional Design.” Political
Bonneau, Chris W. and Melinda Gann Hall. 2009. In Defense of Judicial Elections. New
York: Routledge.
Brace, Paul and Melinda Gann Hall. 1997. “The Interplay of Preferences, Case Facts,
(November): 1206-1231.
Brace, Paul, Melinda Gann Hall, and Laura Langer. 1999. “Judicial Choice and the Politics
of Abortion: Institutions, Context, and the Autonomy of Courts.” Albany Law Review
62 (4): 1265-1303.
Cann, Damon M. and Jeff Yates. 2008. “Homegrown Institutional Legitimacy: Assessing
Citizens’ Diffuse Support for State Courts.” American Politics Research: 36 (March):
31
297-329.
Caufield, Rachel P. 2007. “The Changing Tone of Judicial Election Campaigns as a Result
of White.” In Running for Judge: The Rising Political, Financial, and Legal Stakes of
Judicial Elections, Matthew Streb, ed. New York: New York University Press.
Chen, Edwin. 1988. “Fund-Raising Ills: For Judges, the Stakes are Rising.” Los Angeles
Choi, Stephen J., G. Mitu Gulati, and Eric A. Posner. 2007. “Professionals or Politicians:
The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary.” John
M. Olin Law & Economics Working Paper No. 357 (2nd Series), University of Chicago.
Dimino, Michael R. 2004. “Judicial Elections versus Merit Selection: The Futile Quest for
Dubois, Philip L. 1980. From Ballot to Bench: Judicial Elections and the Quest for
Epstein, Lee and Jeffrey Segal. 2005. Advice and Consent: The Politics of Judicial
Geyh, Charles Gardner. 2008. “Methods of Judicial Selection and Their Impact on Judicial
Gibson, James L. 2009. “ ‘New Style’ Judicial Campaigns and the Legitimacy of State
Glick, Henry R. 1978. “The Promise and Performance of the Missouri Plan: Judicial
32
Glick, Henry R. and Craig Emmert. 1987. “Selection Systems and Judicial Characteristics:
228-235.
Goldberg, Deborah, Sarah Samis, Edwin Bender, and Rachel Weiss. 2005. The New
Hale, Kathleen, Ramona McNeal, and Jason Pierceson. 2008. “New Judicial Politics?
Interest Groups in State Supreme Court Races.” Paper presented at the Annual Meeting
of the Midwest Political Science Association, Chicago, IL, April 3-6, 2008.
Hall, Melinda Gann. 1987. "Constituent Influence in State Supreme Courts: Conceptual
Hall, Melinda Gann. 1992. "Electoral Politics and Strategic Voting in State Supreme
Hall, Melinda Gann. 1995. "Justices as Representatives: Elections and Judicial Politics in
Hall, Melinda Gann. 2001. “State Supreme Courts in American Democracy: Probing the
Hall, Melinda Gann. 2007. “Voting in State Supreme Court Elections: Competition and
Hall, Melinda Gann and Chris W. Bonneau. 2006. “Does Quality Matter? Challengers in
20-33.
Hall, Melinda Gann and Chris W. Bonneau. 2008. “Mobilizing Interest: The Effects of
33
Hojnacki, Marie and Lawrence Baum. 1992. “’New Style’ Judicial Campaigns and Voters:
(December): 921-948.
Hurwitz, Mark S. and Drew Noble Lanier. 2008. “Diversity in State and Federal Appellate
Courts: Change and Continuity Across 20 Years.” Justice System Journal 29 (1): 47-
70.
Jackson, Robert A., Jeffrey J. Mondak, and Robert Huckfeldt. 2009. “Examining the
http://www.gavelgrab.org/wp-content/resources/polls/MinnesotaJusticeatStakesurvey.pdf.
Kelleher, Christine A. and Jennifer Wolak. 2007. “Explaining Public Confidence in the
721.
Klein, David and Lawrence Baum. 2001. “Ballot Information and Voting Decisions in
Langer, Laura. (2002). Judicial Review in State Supreme Courts: A Comparative Study.
Lewis-Beck, Michael S., William C. Jacoby, Helmut Norpoth, and Herbert F. Weisburg.
2008. The American Voter Revisited. Ann Arbor: University of Michigan Press.
Peters, C. Scott. 2009. “Canons of Ethics and Accountability in State Supreme Court
34
Rutledge, Jesse and Lauren Nyren. 2007. “Quie Commission Recommendations Could
http://www2.justiceatstake.org/contentViewer.asp?breadcrumb=5,55,949.
Rottman, David B. and Roy A. Schotland. 2001. "What Makes Judicial Elections
Savchak, Elisha Carol and A.J. Barghothi. 2007. “The Influence of Appointment and
Schotland, Roy. 1985. “Elective Judges’ Campaign Financing: Are State Judges’ Robes the
Sheldon, Charles H. and Linda S. Maule (1997). Choosing Justice: The Recruitment of
State and Federal Judges. Pullman, WA: Washington State University Press.
Squire, Peverill and Erin R.A.N. Smith. 1988. “The Effect of Partisan Information on
Streb, Matthew J. 2007. “Partisan Involvement in Partisan and Nonpartisan Trial Court
Elections.” In Running for Judge: The Rising Political, Financial, and Legal Stakes of
Judicial Elections, Matthew Streb, ed. New York: New York University Press.
Tiede, Lydia Brashear. 2006. “Judicial Independence: Often Cited, Rarely Understood.”
Figure 1