Brandenburg, Bert, Caufield, Rachel Paine, Judicature
Ardent advocates by Bert Brandenburg and Rachel Paine Caufield In Defense of Judicial Elections, by Chris W. Bonneau and M el i n da Cann Hall. Routledge. 2009. 200 pages. $30.95.
Amid growing concern about trends in judicial elections, a backlash has stirred. In Defense of Judicial Elections is the work of two ardent advocates of elections, profes- sors Chris Bonneau and Melinda Gann Hall, who have little patience for good-government concerns with the system of partisan judicial con- tests they endorse. Although the book is marketed as a comprehen- sive argument, it actually focuses on a very limited slice of the debate about whether and how to elect judges. The authors have compiled substantial data, and present some interesting empirical analysis. But the book's conclusions frequently race past the data and the authors spend considerable effort bashing potential opponents instead of engaging their arguments.
Throughout, the authors rely heavily on caricaturing other positions and erecting straw men to attack, "The independence argument really is an argument for independence from the electorate," they avow. "Appointment schemes are simply not the miracle cure for any ills of judicial elections." "It would seem that the real concern of judicial reform advocates is not campaigning or television per se but the increasingly competitive nature of state supreme court elections." "Contrary to conventional wisdom voters appear to be quite capable of making smart political choices."
The book also suffers from mischaracterizations of existing research. For example, the authors argue that a 2007 paper on judicial performance claims that "judges chosen in elections, particularly in partisan elections, are better than judges chosen by other methods" (emphasis by Bonneau and Hall). In fact, the authors of the 2007 study specifically warn that, "our evidence does not prove that elected judges are superior to appointed judges." Such presumptions and preferences - featuring statements like "any objections to electingjudges cannot be made on empirical grounds" - dominate the book.
"The costs of campaigns should not be a cause of concern," the authors announce, "unless there is convincing evidence of adverse effects on candidate entry, quality recruitment, or other important aspects of the political process." This framing statement, which reduces the role of courts to assume that they are simply agents to deliver campaign outcomes, illustrates the book's lack of attention to the implications of over-politicized judicial campaigns for democratic government. Absent is any consideration of the courts' core functions in checking other branches of government, their unique place within the separation of powers, or then- role protecting due process rights and other constitutional liberties. Also conspicuously absent is any discussion of the concerns of litigants, the very people who submit their lives, liberties, and livelihoods to courts that they count on to be fair.
The book also wishes away broad concerns about the influence of campaign cash on courtroom decisions. Surveys consistently show that 70 to 80 percent of the public believes that campaign donations affect judicial decisions. As Professors James L. Gibson and Gregory A. Caldeira recently wrote, "the receipt of campaign contributions can indeed threaten legitimacy. For many citizens, contributions to candidates for judicial office imply a conflict of interest, even a quid pro quo relationship between the donor and the judge, which undermines perceived impartiality and legitimacy." Even more chilling is how many judges believe campaign cash dits the scales of justice: a National Center for State Courts survey shows that 49 percent of judges agree. As former Ohio Justice Paul Pfeiffer says, "I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race. Everyone interested in contributing had very specific interests. …