Electoral Benefits: The Assault on the Assualters of Judicial Elections
Epstein, Lee, Judicature
Judicial elections may produce legitimacy, yet other systemic disadvantages remain. This essay reflects upon the differences in judicial decision-making across selection systems and their consequences.
For decades now, many law professors, judges, institutes, and professional associations (including the American Judicature Society), have been leveling an assault on judicial elections.1 Their attack is multipronged but usually the words "special interests," "judicial independence," "impartiality," and "legitimacy" appear somewhere in their articles and speeches, and on their websites.
Now the assaulters are under assault.
The counter-attackers are mostly social scientists, with a sprinkling of law professors. Armed with vast amounts of data, their point isn't to show that judicial elections aren't as bad as we've been led to believe; it is to demonstrate that forcing judges to face the electorate has substantial benefits. Based on a dataset of state high court opinions, law professors Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner establish that "Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the. ..large quantity difference makes up for the small quality difference."2 They also show that appointed judges are no more independent than elected judges. Drawing on data from more than 500 elections and retentions for seats on state high courts, political scientists Chris W. Bonneau and Melinda Gann Hall "throw empirical grenades"3 at the claim that voters are uninterested in judicial elections or unqualified to vote because they know so little about the candidates.4 Neither is true - especially not in "expensive and contentious" races.5
James L. Gibson, also a political scientist, picks up where Bonneau and Hall leave off. Using data from campaigns and their outcomes, Bonneau and Hall conclude that elections are good for democracy. From the results of experiments embedded in surveys, Gibson argues that, on balance, elections benefit (or at least do not harm) judges because they increase the legitimacy of their courts relative to other systems of selection.6 According to Gibson, this is to be expected: "Because elections are preferred by most Americans, elections, by themselves, with all their warts and odorous smells, contribute to the legitimacy of elected courts in the United States."7
On this account, "policy talk" of the sort the Supreme Court enabled in Republican Party of Minnesota v. White8 works in service of - and not against - the legitimacy-enhancing function of elections. "If elections are employed as a means of selecting judges, then the elections must be legitimate, and all campaign activity that is allowed in elections for other offices must be tolerated in elections for judges." So says Gibson,9 echoing the majority in White; and so say his data.
Gibson, along with Choi et al. and Hall and Bonneau, are not scholars with a political agenda; nor, as far as I know, have they received any funding from the "super spenders"10 in judicial elections: "pro-business groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups." They are serious academics with a reputation for letting the data speak. When Bonneau and Hall say they "started out agnostic about the merits of electing judges," I believe them. When Choi, Gulati, and Posner write, "We began this project with the assumption that the data would demonstrate that appointed judges are better than elected judges,"11 I believe them too. Their article meets all the standards we use to assess the integrity of empirical work.12 The same holds for Hall and Bonneau's and Gibson's books. I should also note that Gibson has made a career out of studying mass behavior, receiving many honors and awards along the way.
Gibson will also receive accolades for this book - as well he should. It's timely, creative, clever, and quite accessible, despite its methodological rigor and sophistication. …