The Effects of Judicial Campaign Activity on the Legitimacy of Courts: A Survey-Based Experiment

Article excerpt

Abstract

The purpose of this article is to investigate the consequences of judicial campaign activity for the perceived legitimacy of the Pennsylvania judiciary. The authors find that politicized campaign ads do detract from court support, although they find practically no difference between traditional campaign ads (e.g., presenting endorsements from groups) and strong attack ads. But this finding must be understood within the context of the 2007 Pennsylvania election increasing court support for all respondents, even those exposed to the most politicized ad content. Being exposed to politicized ads seems to retard the benefits of elections but does not eliminate them.

Keywords

judicial elections, campaigning, politicized campaigns, attack ads, judicial legitimacy

Campaigning for state judgeships in America has entered a new era. In the past, campaigns might have been described as decent, docile, and dirt cheap, even if drab and dull. Today, they are said to be "nosier, nastier, and costlier" (Schotland 2001). Whatever the characterization, there can be little doubt that the landscape of judicial elections has changed rather dramatically in the past decade in the United States.

As a consequence of this "new style" of politicized judicial election, court observers are concerned that the legitimacy of the judiciary-or at least its perceived impartiality-may be compromised. For instance, one legal scholar opines:

When judicial decisions are seen as politicized rather than independent, or as done in the service of a special interest group or to advance judges' self-interest rather than in a neutral and independent spirit, the sense of fairness and justice that is the binding force of the Rule of Law becomes exhausted and the system is weakened. Disobedience and avoidance of legal obligations can be expected to rise in direct proportion to declining respect for law. As respect for the fairness of law diminishes, greater government force must be used to ensure obedience. (Barnhizer 2001, 371, footnotes omitted)

In fact, however, we know little about the effect of campaign activity on citizens' perceptions of judicial institutions. The assumption seems to be that campaign activities of many sorts threaten institutional legitimacy, but the evidence that exists-fragmentary as it is-calls this conclusion into question. Even the well-established literature on campaign effects within ordinary political institutions is uninformative on this issue since that research rarely considers the repercussions of campaigning on fundamental attitudes toward and support for political and legal institutions.1 At this point, we simply do not know what consequences flow from the more politicized style of judicial campaigning that seems to be sweeping across the nation these days.

Consequently, the purpose of this article is to investigate the effects of campaign activity on the support Pennsylvanians extend to their state Supreme Court. Based on a survey conducted in 2007, with interviews before, during, and after the election on November 6, 2007, we employ an experimental design to test the general hypothesis that politicized judicial campaigns undermine support for the judiciary. Because this research relies on a Web-based survey, the campaign material the respondents viewed is extremely realistic (and real since we used actual ads and campaign material broadcast in judicial races). Moreover, because Pennsylvania has recently been the object of intense and salient political controversy over its judiciary (Goodman and Marks 2006), the 2007 campaign provided an exemplar of how judicial campaigns have become "nastier" and "noisier." Our findings indicate that the effects of judicial campaign activity may be more complicated-and less deleterious-than many assume. Most important, our data suggest that even if politicized ad campaigns subtract from judicial legitimacy, that negative effect is overwhelmed by the positive boost in institutional legitimacy courts receive from elections. …