The Battle over Judicial Elections: Right Argument, Missed Audience, Or: The Book We Should Have Had

By Wasby, Stephen L. | Justice System Journal, September 1, 2009 | Go to article overview

The Battle over Judicial Elections: Right Argument, Missed Audience, Or: The Book We Should Have Had


Wasby, Stephen L., Justice System Journal


The Battle Over Judicial Elections: Right Argument, Missed Audience, or: The Book We Should Have Had In Defense of Judicial Elections, by Chris W. Bonneau and Melinda Gann Hall. New York: Routledge, 2009. 190 pp.

STEPHEN L. WASBY

To defend state judicial elections, Bonneau and Hall, two leading scholars of state courts, examine 264 state supreme court elections in eighteen states and 210 retention elections for 1990-2004, when judicial elections moved from low to high salience and competition increased. They draw on literature on judges' decision making, on factors affecting turnout and election "toll- off," and on challengers to argue, counter to reformers' views, that judicial elections for state high courts are not subject to the host of refotmets' complaints and are "as efficacious as elections to other political offices" (p. xv). They set out concerns about the purportedly malign effects of increasing competition for, and expenditures on, judicial positions and assert that judicial reform, particularly nonpartisan elections, may actually produce effects about which reformers themselves complain, like low turnout and high campaign expenditures. Judicial elections have become much more like elections for other positions, they tell us, with voter participation affected by much the same factors - contestation and well-financed campaigns.

The authors declare that they have arrived at "one striking conclusion: that the principal charges against judicial elections are factually inaccurate" (p. 129), and they further conclude that state supreme court elections, "far from being institutional failures," are "a highly effective means for promoting citizen control of government and should be reconsidered" (pp. 17-18). One proposition underlying their arguments is that state -high-court judges are important political actors with discretion to shape judicial decisions to their personal preferences, while they are constrained by strategic contingencies, contextual features, and institutional arrangements like selection method and length of term. On "politically volatile and highly divisive disputes" (p. 15) that are complex and have no one clear answer, judges will not be bound by law and precedent. Their other proposition is that judges seeking to retain office through election are not different from other political actors.

Basic Contents. The book's six chapters, effectively assisted by tables and figures, mix discussion of voter participation and campaign finance. Providing context, the first chapter presents arguments for and against having elected judges and a history of shifts in selection mechanisms. Reformers' assertions are reduced to hypotheses and subjected to "objective social science techniques" (p. 18) in chapters 2, 3, and 4, and the authors' earlier claim of depressed voting in judicial elections is juxtaposed with the current one that "vigorous competition" - challengers seeking to oust incumbents - "and expensive campaigns have deleterious effects on courts" (p. 20). Themes are that high participation occurs in judicial elections under certain conditions, including expensive campaigns, while judicial reform measures depress turnout.

Chapter 3 gives greater focus to campaign finance and television advertising, which has increased but lags behind higher electoral competition for judicial positions. Money, with mote going to incumbents, is shown to be only one factor in elections, with nonpartisan elections more frequently higher- cost and partisan elections more likely lower-cost, a further indication that the same factors affect judicial and other elections. Chapter 4, about challengers, to whom unpopular judges are vulnerable and who act strategically, tells us that partisan judicial elections ate more like gubernatorial elections than like congressional ones, while nonpartisan judicial elections are more like the congressional contests.

Chapter 5 is a state-by-state examination of five states that have changed or are contemplating changing to nonpartisan elections or the Missouri plan or adding or expanding public financing of judicial elections, and it ptesents a first look at effects of those recent reforms. …

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