White Noise: The Unrealized Effects of Republican Party of Minnesota V. White on Judicial Elections*

Article excerpt

Republican Party of Minnesota v. White (2002) has caused the nation's most powerful legal-advocacy organizations to question the wisdom of electing judges without regulations to help keep judicial candidates above the political fray. Conventional wisdom states that White has heightened the politicization of judicial elections by facilitating expensive, below-the-belt exchanges that sharply attenuate the incumbency advantage and threaten the legitimacy of state courts. Our primary assumption is that if White has had the presumed effects, we should see measurable changes in key judicial election characteristics: an increased willingness of challengers to enter the electoral arena, decreased electoral support for incumbents, elevated costs of campaigns, and declines in voter participation. Overall, we find no statistically discernable changes in state supreme court or state intermediate appellate court elections on these dimensions, which should help allay the fears of those concerned about judicial elections while encouraging additional empirical research on the judicial selection controversy.

Few issues on the American political agenda are more divisive or controversial than the practice of electing judges. While a number of the nation's most influential legal-advocacy organizations historically have expressed strong opposition to selecting judges in partisan elections and actively have lobbied to replace them with nonpartisan elections or the Missouri Plan, this opposition recently has intensified into outright condemnation of contestable elections.

In particular, the American Bar Association (ABA), the nation's largest and most powerful interest group actively seeking to alter the process by which state court judges are selected and retained, is convinced that electoral politics has devastating consequences for judges and courts. As a result, the ABA formally advocates replacing all forms of judicial elections with gubernatorial appointment schemes. Additionally, the ABA opposes indirect citizen representation in the appointment process in the form of legislative confirmation because it considers the confirmation process to be dominated by politics, which in their view threatens judicial legitimacy (ABA Commission on the 21st Century Judiciary, 2003:174).

While the ABA is working to end the practice of electing judges altogether, others are lobbying to replace contestable elections with a revised version of the Missouri Plan.1 Although acceptance of the Missouri Plan has stalled at the statewide level since 1994,2 prominent legal figures like retired Supreme Court Justice Sandra Day O'Connor, who has formed the Judicial Selection Initiative, are seeking to revive it.3

This latest push against judicial elections has been inspired by recent trends in the conduct of campaigns, especially the skyrocketing costs of supreme court elections and the national visibility achieved by a number of expensive, bare-knuckled contests for the state high court bench. Exacerbating these concerns is the United States Supreme Court's landmark decision Republican Party of Minnesota v. White (2002). Since June 2002 when the Supreme Court decided White, this ruling has received a "blizzard of commentaries on the likelihood of dire consequences flowing from the politicization of state courts" (Gibson, 2008:60) and has contributed mightily to the overriding concern that judicial elections will become nasty political smackdowns that destroy the foundations of state court legitimacy. As the Justice at Stake Campaign asserts:

. . . [I]ts effects could be momentous: by loosening standards for campaign speech, the White decision lit a time bomb that could drive more big money into campaigns, give special interests new powers to pressure judicial candidates, and tempt judicial candidates to pander to special interests or face their wrath. In other words, the White decision will accelerate the growing threat to our courts, and to the 86% of America's state judges who must stand for election (Goldberg and Sanchez, 2003:23). …