Legitimacy, Yes: But at What Cost?
Hume, Robert J., Judicature
Do the costs of judicial elections outweigh the benefits? This essay considers questions about judicial elections that remain unanswered by current research, including the possibility that elected judges are less capable of protecting minority rights.
James Gibson's important new book, Electing Judges, challenges assumptions about judicial elections that have crept into debates on law and policy.1 The book's most immediate task is to rebut claims made by the dissenting justices in Republican Party of Minnesota v. White that judicial campaign activity "inevitably diminishes the public's faith in the ability of judges to administer the law without regard to personal or political self-interest."2
But it is more than a response to White. Gibson also responds to scholars who have sounded "alarm bells" over judicial elections, who fear that judicial elections will diminish public confidence in courts and reduce the public's willingness to comply with their legal obligations. As one such critic put it, "When judicial decisions are seen as politicized rather than independent. ..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."3
Gibson responds to these claims as any good social scientist would - with evidence. There is no need to resort to speculation about the effects of judicial elections and judicial campaign activity on legitimacy. These are empirical questions, and the answers are accessible to science. Gibson is to be commended for applying his considerable skills to the task of introducing rigor to a debate that may be premised on false assumptions.
Two of Gibson's findings are particularly noteworthy. First, he demonstrates that citizens have different expectations about the judiciary and that many citizens do not expect (or, indeed, want) judges to be independent or nonpolitical in their decision making. "Not everyone accepts that mechanical jurisprudence constitutes the best form of judging," Gibson concludes; "not everyone accepts that judicial independence is a value trumping all other considerations."4 Legal elites might value independence; but many in the public do not, and Gibson cautions elites not to project their own values and expectations onto the mass public.
Second, he finds that judicial elections, on balance, enhance legitimacy. Gibson acknowledges that certain features of judicial election campaigns, most notably campaign contributions, undermine legitimacy; but the net benefits of elections are positive. "Presumably," Gibson writes, "we care most about whether elections add to or subtract from the legitimacy of courts in toto, not whether a particular ad campaign is churlish."5 Elections benefit courts because "simply being able to vote for judges makes courts more legitimate."6
Together, these findings do much to cast judicial elections in a positive light.7 Minimally, Gibson's work should silence some of the more extravagant claims made about judicial elections made in White and elsewhere. Indeed, his research suggests that elected and appointed courts are comparable in terms of legitimacy. As Gibson notes, "state high courts seem to be as legitimate as the venerable U.S. Supreme Court."8
Still, I remain unconvinced that the benefits of judicial elections outweigh the costs.9 Specifically, I have three questions about the potential consequences for courts if judicial elections were adopted more widely.
Do elections make it harder for judges to function as "republican schoolmasters"?
Much of the recent research on judicial elections has focused on the influence of elections on general levels of public confidence in courts.10 Yet, many of the classic works on legitimacy theory have suggested that courts are not simply resiliently popular institutions, but also "republican schoolmasters," uniquely capable of building the public's support for policy alternatives, particularly on issues relating to civil rights and liberties. …