Judging the Politics of Judging
Are Politicians in Robes Inevitably Illegitimate?
James L. Gibson
MANY LEGAL SCHOLARS assume that politicized processes of selecting state and federal judges in the United States contribute—and some would say contribute mightily—to the erosion of confidence in the judiciary. The assumption of this position is that anything associated with politics delegitimizes courts: politics poisons the judiciary. Campaigning for the bench in particular is commonly said to pose every manner of threat to the “nonpolitical” nature of the judiciary, the most crucial wellspring of institutional legitimacy. As one observer put it:
The spread of negative campaigning in judicial races is likely to have adverse
consequences for the court system. The motives of judicial candidates will be
cast into doubt, and public esteem for the judiciary will suffer. Not only will
candidates for judicial office be equated with ordinary politicians, but the im-
partiality, independence, and professionalism of the judiciary will also be called
into question. Large-scale advertising in state judicial elections will further po-
liticize state courts in the eyes of the public. (Iyengar 2002, 697)
Courts in the United States are at risk owing to the processes used to select judges.
Unfortunately, however, this assumption has not been subjected to much rigorous, empirical investigation. In order to assess this hypothesis with any degree of rigor, several tasks must be undertaken. First, some definitions are in order. While it is not too difficult to define “confidence”—a substantial literature on attitudes toward courts exists—more demanding is the task of deriving