"The Battle over Judicial Elections: Right Argument, Missed Audience": A Response to Stephen Wasbyy/A Reply to Professors Bonneau and Hall
Bonneau, Chris W., Hall, Gann, Justice System Journal
We appreciate Stephen Wasby's review of our recently published book, In Defense of Judicial Elections. In his review, and as his title "Right Argument" suggests, Professor Wasby opines that we have offered a convincing argument that extant empirical research supports the case for using partisan elections to staff the state high court bench and that much being offered by the reform movement is inaccurate or unsubstantiated. These views are consistent with Professor Wasby's initial review - now printed on the book jacket - that we "provide a strong argument for retaining this controversial method of judicial selection" and "effectively debunk reformers' pretensions and stick empirical fingers in the reformers' eyes." Because these were the fundamental goals of our project, Professor Wasby's comments constitute high praise indeed.
In light of these endorsements, we are hesitant to challenge Professor Wasby's review. However, he offers some criticisms that we believe reflect a lack of appreciation for the complexities of comparative state politics research, the unorthodoxy of normative pitches in academic journals, and the hostile reaction from some corners of the anti- elections advocacy community that has resulted from having their contentions scrutinized and challenged. Thus, we now address the three basic points in Professor Wasby's review that might lead readers to reach erroneous conclusions about our enterprise and its accessibility and impact.
Should We Have Included Intermediate Appellate Court Elections? Professor Wasby argues that the "greatest substantive defect" of In Defense of Judicial Elections is that we do not include intermediate appellate court elections, which he asserts may reflect more precisely the concerns expressed by many judicial reform advocates. He writes that "the authors' students could have preformed preliminary studies and funds for further work could have been sought." There are two false assumptions in Professor Wasby's contentions: 1) that information on intermediate appellate court elections could have been assembled easily and 2) that the problems of concern to reformers will be more pronounced with intermediate appellate courts than supreme courts.
Studying elections at the state level is strikingly different than studying presidential and congressional elections where data are collected for each cycle by the American National Election Study and are readily available without cost to investigators. Rather than archival data being easily accessible for scientific analysis, individual investigators must gather information about judicial elections at their own time and expense. But the work does not stop there. The states vary considerably in how elections are conducted, when elections are scheduled, how much information is reported about the candidates, and the overall political context within which these elections occur. Thus, not only are the election results to be collected and coded by each researcher, critical information about the candidates, institutional structures, and political context also must be assembled. This certainly goes a long way in explaining why there are so few studies of lower-court elections or lower courts generally.
In Defense of Judicial Elections examines, at least in some way, all 474 retention, nonpartisan, and partisan elections over a fifteen-year period (1990-2004) in the thirty-eight states using elections to staff their highest courts. Our goal was to assess the politics of state supreme court elections using state-of-the-art empirics and rigorous theoretical constructs. In doing so, we evaluate systematically the impact of such critical features of elections as quality challengers, the nature of the incumbency (whether initially appointed and seeking election for the first time, or a seasoned incumbent), campaign spending, and various characteristics of state electorates. As a consequence, ours is an enterprise of unprecedented scope and rigor about how judicial selection systems function and with what effects. …