How Judicial Elections Are
Like Other Elections and What
That Means for the Rule of Law
Matthew J. Streb
GEORGETOWN UNIVERSITY law professor Roy Schotland (1985, 78) famously quipped that judicial elections were becoming “noisier, nastier, and costlier.” Schotland was ahead of the curve, because the conventional wisdom at the time of his writing was that judicial elections were primarily sleepy affairs that looked little like elections for other offices.1 Almost twenty years after Schotland’s writing, the Brennan Center for Justice, with the Justice at Stake Campaign and the National Institute on Money in State Politics, issued a report documenting a “new politics of judicial elections” (Goldberg et al. 2002). Observers of the courts were alarmed by this report (and four subsequent reports), precisely because judicial elections seemed to have many of the same characteristics as other elected contests, especially regarding the costs and tone of the elections. To reform organizations like the Brennan Center, the fact that judicial elections were “noisier, nastier, and costlier” threatened to undermine judicial independence and the integrity of the courts.
Although many works have documented the politicization of judicial elections in recent years, few have thoroughly compared the characteristics of judicial elections to elections for other offices—namely, the U.S. Congress and state legislatures. From a public law perspective this relationship is important, because it provides a better understanding of the selection method to the state courts used in part by thirty-nine states. This comparison may be even more interesting to scholars of political behavior, because of the low-information nature of most judicial elections. It is possible that scholars’ findings regarding