Gibson's Electing Judges: What We Know and What We Need to Know about the Effects of Politicized Judicial Campaigns
Streb, Matthew J., Judicature
This essay provides an overview of Gibson's findings and discusses the contribution made to the normative debate over judicial elections.
James L. Gibson's book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy, is an excellent contribution to the burgeoning study of judicial elections. Anyone engaged in the debate over electing judges should be familiar with the book, Gibson's research addresses issues that people have made claims about for more than a decade with limited empirical evidence.
Though it was noted as early as the 1980s that judicial elections were becoming "nosier, nastier, and costlier"1 and political scientists recognized a "new style" of judicial campaigns in the 1990s,2 a report written by Deborah Goldberg and her colleagues shortly after the 2000 Supreme Court election cycle documenting the "new politics of judicial elections" alarmed many scholars and judicial reform organizations.3
The U.S. Supreme Court's decision in Republican Party of Minnesota v. White (2002) voiding a state law that prohibited judicial candidates from articulating their positions on issues that might appear before the court exacerbated these worries. Many believed that the White decision would turn judicial campaigns into political free-for-alls and make judges appear to be nothing more than politicians in robes, undermine judicial independence, and threaten the legitimacy of the courts. As Roy Schotland wrote immediately after White, the "decision will make a change in judicial election campaigns that will downgrade the pool of candidates for the bench, reduce the willingness of good judges to seek reelection, add to the cynical view that judges are merely 'another group of politicians/ and thus directly hurt state courts and indirectly hurt all our courts."4 New York State Bar Association president, Lorraine Power Tharp, concurred with Schotland. "This is going to open up the doors to so many campaign abuses that have been documented around the country," said Tharp. "The public loses its trust and confidence in the judiciary. Judicial campaigns should be conducted with dignity and integrity."5
For all of the concern over the "new politics of judicial elections" and the White decision, few studies have actually examined their effects. The little evidence we have suggests that concerns about White are unfounded. My research with Bonneau and Hall finds that state supreme court elections - or intermediate appellate court elections, for that matter - have not become more contested or competitive after the White ruling. 6 Yet, we rely on aggregate data and do not directly test whether White has had an effect on citizens' attitudes toward the legitimacy of the courts. Gibson, however, does and this is why the book is important.
Although he is interested in several issues, the primary question that Gibson answers in his book is whether the concern over the effects of the White decision is justified. In brief, he finds that the doomsday scenarios predicted by some observers have not come to fruition. His findings may be unexpected (hence, the title of the book) primarily because they run counter to the narrative that most opponents of judicial elections tell. In fact, Gibson finds that judicial elections on the whole actually boost - rather than undermine - the public's perception of the legitimacy of the courts. There may be some negative consequences associated with electing judges, but, according to Gibson, the benefits outweigh the drawbacks.
Using both experimental vignettes and panel surveys, with respondents primarily from one state (Kentucky),7 Gibson compares responses to the judiciary with those to the state legislature and draws several conclusions. There may be small variations in the consistency of his results, but essentially the findings can be summed up as follows:
* Although campaign contributions can have a negative effect and the use of attack ads has a moderate negative effect, policy pronouncements have no consequences for judicial legitimacy. …