Do Judicial Elections Really Stink?
Gibson, James L., Campaigns & Elections
Why campaign activity isn't as damaging to judicial legitimacy as some may think
How dangerous is campaign activity to the legitimacy of American courts? Here is what one of the most prominem analysts of campaigning and elections predicted back in 2002:
"The spread of negative campaigning injudicial races is likeh, to have adverse quences for the court system," Stianto [yengar wrote in an Indiana Law Review article. "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 impartiality, independence, and professionalism of the judiciary will also be called into question. Large-scale advertising in state judicial elections will further politicize state courts in the eyes of the public." If this scenario did indeed come to pass, the American state judiciaries- the workhorse of litigation in the United States -would be seriously undermined and compromised.
Because the empirical evidence necessary to substantiate these fears is so limited, this study was conceived and executed. What follows is an excerpt from my forthcoming book, "Judicial Elections: The Surprising Effects of Campaigning on Judicial Legitimacy." My goal was to examine the consequences of electoral activity with a research design tailored to answer some of the key empirical questions about elections and legitimacy.
In order to be able to make causal claims about campaign causes and legitimacy effects with a high degree of confidence, this project employed the two major cornerstones of causal inference: experiments with random assignment of respondents to treatments and dynamic analysis of change over time. In order to overcome the limits of nonrepresentative samples and unknown generalizability, the research design employed a representative sample of the adult residents of the state of Kentucky (and for more limited purposes, a nationally representative sample). There are still limits to this projectonly some of my results from Kentucky have been replicated with nationally representative data- but the empirical basis of the substantive conclusions I draw in this book is perhaps as strong or stronger than any prior study of judicial campaigns and elections.
The most important conclusion: judicial campaign activities do not seem to damage the legitimacy of those courts that select their judges through popular elections. This is an unexpected finding and a bold conclusion. A recap of the evidence supporting that conclusion is therefore in order.
Judicial Elections and Legitimacy
I have found that judicial elections directly contribute to the legitimacy of courts, most likely by reminding citizens that their courts are accountable to their constituents- the people. The American people generally prefer that the balance between accountability and judicial independence be titled toward tje accountability end of the continuum, so it is not at all surprising that elections would have this effect. In assessing the impact of campaign activity on judicial legitimacy, analysts must begin by recognizing that all such activity must be evaluated in relationship to the legitimacy-boosting effects of electoral accountability.
How much legitimacy do the elected high courts in the American states enjoy? Because the vast majority of judges in the United States are subject to some form of electoral accountability, it is therefore not surprising that state courts in this country are widely accepted as legitimate institutions. I readily admit that the evidence for this conclusion is perhaps not as strong as it might be, but it seems that somewhere around three-fourths of the American people extend legitimacy to their state judicial institutions. Indeed, state high courts seem to be as legitimate as the venerable United States Supreme Court.
Critics of elections might view this figure as low- in comparison to 100 percent- and might argue that there has been a slow and steady erosion from unanimity over the course of years of judicial elections. …