Academic journal article Michigan Law Review

Judging Judicial Elections

Academic journal article Michigan Law Review

Judging Judicial Elections

Article excerpt

JUDGING JUDICIAL ELECTIONS

ATTACKING JUDGES: HOW CAMPAIGN ADVERTISING INFLUENCES STATE SUPREME COURT ELECTIONS. By Melinda Gann Hall. Stanford: Stanford University Press. 2015. Pp. xvi, 244. $27.95.

INTRODUCTION

Melinda Gann Hall's1 new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us-a powerful defense of today's partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the "corrosive effect of money on judicial election campaigns" and "attack advertising," the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges.2 Justice O'Connor, who has championed judicial-election reform since her retirement from the Supreme Court, warns that "there are many who think of judges as politicians in robes" and agrees "[i]n many states, that's what they are."3 Melinda Gann Hall, a political scientist and authority on judicial behavior, sets out in her book to challenge some of these claims.

Without question, Attacking Judges is an important empirical assessment of the new style of judicial elections, right at a moment when such assessments are most needed. Hall brings together data on election results and television advertising in state supreme court races from 2002 to 2008, purporting to buck the popular imagination about attack advertising in judicial elections. Hall argues that attack advertising in state supreme court elections has little of the electoral impact that critics of judicial elections fear. Attack advertising reduces incumbents' vote share in nonpartisan elections, but it has no statistically significant effect on incumbents' vote share in partisan elections (p. 113). What is more, Hall shows that attack advertising improves voter participation in state supreme court elections, at least in nonpartisan races (p. 157). Voters in nonpartisan elections do not have partisan cues about how to vote, but attack advertising motivates them to vote against incumbents targeted by those ads and effectively increases voter participation in state supreme court contests (p. 161).

Although the book's empirical findings are immensely valuable, we nonetheless believe the book misses the overarching critique against the current state of judicial elections. A basic suggestion underlying the analysis is that judges perform a similar function of democratic representation as their elected counterparts in the legislative and executive branches. Hall minimizes worries about attack advertising in judicial elections in part because her work demonstrates the "remarkable similarities between state supreme court elections and elections to other important offices in the United States" (p. 126). But it is these remarkable similarities that are, in a nutshell, exactly what critics see as the problem with judicial elections. Attacking Judges does not rebut Justice O'Connor's indictment of elected judges as politicians in robes; it actually might substantiate them.

Electoral and campaign-finance pressures that lead judges to sensitivity about voter response and to act more like partisan politicians bending toward public opinion are precisely the concerns about today's "new style of free-for-all judicial elections."4 In our view, Hall's findings reinforce the intensity of this concern, at least when her findings are combined with our own. We recently released, as part of an American Constitution Society (ACS) report, an empirical study of campaign advertising and state supreme court decisionmaking in criminal appeals.5 Our study examined the general relationship between television campaign advertising and judicial decisionmaking. We found that the more television ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. …

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