Contestation, Competition, and the Potential for ACCOUNTABILITY in Intermediate APPELLATE COURT ELECTIONS
Streb, Matthew J., Frederick, Brian, LaFrance, Casey, Judicature
Advocates of judicial elections have long held that they are essential if judges are to be held accountable to the public. While several of the founding fathers, including Hamilton, believed that federal judges should be insulated from the public to promote judicial independence, this has not been the predominate view at the state level. Indeed, 39 states have some sort of election mechanism to select at least some of their judges. While organizations such as the American Bar Association and the American Judicature Society have regularly argued against judicial elections, their worries seem to have fallen on deaf ears.1 Polls find that the public strongly supports the election of state judges,2 and attempts to make the judicial selection process less democratic regularly fail.3
Given the fact that judicial elections are here to stay for the foreseeable future, we need to understand whether they function as supporters of judicial elections argue they should. In other words, do judicial elections have the potential to promote accountability? While Hall has addressed this question at the supreme court level, to our knowledge no one has systematically analyzed judicial accountability below the supreme court level.4 In order to fill this empirical void, we examine results for all intermediate appellate court general elections (partisan, nonpartisan, and retention) from 2000-2006. We compare those results to elections for the U.S. House of Representatives and state supreme courts over the same time period.
We find that the chief obstacle to accountability in intermediate appellate elections is to get people to run in the first place. A sizable proportion of intermediate appellate judges do not face any opposition. However, contested intermediate appellate elections look quite similar to those elections for the U.S. House and state supreme courts in terms of the share of the vote won by the incumbent and the number of incumbents who are defeated. Finally, these results confirm the worries of many observers who oppose retention elections because they feel those elections are tantamount to giving judges life-time tenure. Only one intermediate appellate judge was not retained over the period of study and, on average, about 75 percent of the public voted to retain intermediate appellate judges.
At the heart of the battle surrounding judicial elections are arguments over judicial accountability and judicial independence. Supporters of judicial elections claim that they are essential to hold judges accountable to the public. For example, Citizens for Judicial Accountability lament the insulation they believe the court system and its judges are afforded, stating:
We believe in the three branches of government Executive, Legislative and Judiciary, each of them with clearly defined responsibilities. However, the judiciary has become a government within a government setting its own rules and laws for judges and lawyers, accountable only to itself under a self regulation, generally with no penalty for acting in contravention of the rules and laws.9
Not everyone agrees. From a normative perspective, opponents argue against judicial elections exactly because they do not want accountabilityor at least do not want judges beholden to the opinions of a fickle public. From an empirical standpoint, these opponents have questioned whether judicial elections actually promote accountability.6 According to Dubois, the lack of accountability promoted by judicial elections is "the most fundamental and damning of the criticisms leveled against popular judicial elections."7
In theory, there would seem to be a great deal of support for the view that judicial elections do not promote accountability. After all, most studies of judicial elections find that voters know almost nothing about the candidates.8 This lack of knowledge is understandable given that until recently judicial candidates were restricted in terms of what they could talk about on the campaign trail, making it difficult for voters to receive quality information about the candidates. …