Electing Judges: Future Research and the Normative Debate about Judicial Elections
Gibson, James L., Judicature
Gibson answers the critics of his Electing Judges, both with regard to the empirical issues raised and the normative implications of those issues. Regarding the former, he argues that the weight of evidence favors his view that judicial elections provide a net benefit to the legitimacy of elected courts. As to the normative issues, Gibson makes the case forjudges paying at least some attention to the policy preferences of their constituents.
The commentators in this symposium have raised a number of issues about Electing Judges that might broadly be categorized as sins of omission or sins of commission.1 I will begin with replies to some of these charges. Since a considerable portion of the comments focus on issues - especially normative ones - I did not address in the book, the last portion of my reply engages various normative questions.
Sins of Commission
Benesh raises a number of important issues, but none more important than whether what I claim to be my most important finding is supported by the data. Is the increase in institutional support I observe from well before the election to well after it - which I attribute to the inherent legitimizing effects of the election - due to forces other than the election? This is a legitimate concern. In the six months or so between the first and last interviews, many things happened, only one of which was the election for the Kentucky Supreme Court.
Benesh offers an alternative hypothesis: the significant increase in institutional support I observed is due not to the election itself but instead to the "the administration of the study." I guess the argument goes that, because we questioned the respondents in May, they paid more attention to the election in November, which caused them to be more supportive of the Court when they were questioned again several months after the election. Simply paying more attention to the election raised support for the Court, according to this hypothesis.
Survey researchers are generally not so certain that this sort of reactivity to a survey interview plays a significant role in altering future responses. Being interviewed on the telephone is actually a far less significant event in the lives of ordinary people than is sometimes assumed, and not many scholars believe that change in basic (even if fairly esoteric) attitudes is created by the interview process. Professor Benesh seems to believe that legitimacy attitudes can be enduringly altered simply by asking questions about the state of those attitudes. I doubt that is so.
Moreover, it is not clear that reactivity would produce the increase in support I observed; stimulating more attention to the election would, in the eyes of many, be more likely to generate a loss in court support. Nor is it clear that change in support would be systematically related to variables connected to the election itself (because the "treatment" - being interviewed at the time of the pre-election survey - was experienced by all respondents in the study, but perceptions of the campaigns varied). I suppose one could weave a complicated tale of causality that focuses on being interviewed months prior to the election, but one would have to allow for a strong correlation between attitudes at the pre-election and post-election surveys; for a pattern of change that is predominantly (and strongly) positive; and correlations of change with perceptions of what actually went on in the election itself.
Still, with every non-experimental study of change comes the possibility that a multitude of factors account for the change. Perhaps a field experiment in which constituencies are randomly assigned to be interviewed or not could shed some light on Benesh's hypothesis (recall that Supreme Court judges in Kentucky serve districts, not the entire state). I reiterate, however, that according to her hypothesis, the towering problems of judicial elections can be mitigated (if not reversed) simply by querying voters about their attitudes toward courts prior to the election period. …