Empirical Support for Common Knowledge

By Champagne, Anthony | Judicature, March/April 2007 | Go to article overview
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Empirical Support for Common Knowledge

Champagne, Anthony, Judicature

Empirical support for common knowledge by Anthony Champagne Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, edited by Matthew J. Streb. New York University Press. 2007. 272 pages. $45.

There is so much that can be said about this volume, some negative, but much that is positive. Streb put together this book because, quite correctly, he saw a need for additional empirical work on state judicial politics. Many of the chapter authors are among the top scholars doing that empirical work. Additionally, Streb envisioned a book that explored the impact of Republican Party of Minnesota v. White (2002). Indeed, the first substantive chapter is by Richard Hasen and it explores "First Amendment Limits on Regulatingjudicial Campaigns," obviously paying special attention to White and its implications.

One of the problems in publishing a book about a fast-moving area of law-and certainly First Amendment law involving judicial campaigns is a fast moving area-is that the law can move quicker than publishing schedules. As useful as Hasen's chapter is in providing an introduction to White, it is likely to quickly become dated.

The following chapter by Rachel Caufield on "The Chaneine Tone of Judicial Election Campaigns as a Result of White" faces a different problem. Caufield explores how campaign conduct laws have been revised by states in the aftermath of White-some states have interpreted White broadly, others narrowly. Caufield then tries to compare judicial campaigns in states with narrow vs. broad interpretations in terms of judicial campaign ad tone, content, and airing in 2004. The problem, one that Caufield notes, is that it may be too early for such research. The only election that could be examined was 2004 and that provides a limited sample. Additionally, much research on the impact of court decisions suggests there is a considerable lag time in response to decisions. Ideally, this research should be repeated with a larger sample of election cycles.

Chris Bonneau provides useful data on campaign spending across states with different election systems. He also provides data on numerous election cycles-from 1990 to 2004. He points out that the states generally recognized as high cost states in terms of judicial elections, such as Alabama, Pennsylvania, Ohio, and Texas, really are not when one considers the size of the voting age population. When voting age population is considered, Illinois, Louisiana, Kentucky, and Mississippi become the high cost states.

There are points where Bonneau presents interesting data and then fails to discuss it. It is, I think, an extraordinary finding worthy of considerable discussion that the four most expensive states per capita all hold their elections in districts rather than statewide. That is counter-intuitive and contrary to the arguments that have been made by those who advocate smaller judicial election districts.

Interesting as well are the differences in campaign spending within one state-Texas-which actually has two supreme courts. The Texas Court of Criminal Appeals is the supreme court for criminal cases and the Texas Supreme Court is the supreme court for civil cases. The Texas Supreme Court is a high cost court in terms of campaign spending, while the Court of Criminal Appeals is virtually a judicial Dollar General. That difference deserves discussion. The explanation is provided by Deborah Goldberg's excellent article on "Interest Group Participation in Judicial Elections" that follows Bonneau's chapter. Goldberg notes that much of the new politics of judicial elections is really a battle between competing interests over tort law.

Streb follows with a chapter based largely on an e-mail questionnaire to political party chairs at the county level. Although it will probably not surprise many who have experience in states with nonpartisan judicial elections, Streb presents survey results that do show considerable party involvement in nonpartisan elections.

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