Competing Narratives in a Judicial Retention Election: Feminism versus Judicial Independence

By Olson, Susan M.; Batjer, Christina | Law & Society Review, January 1, 1999 | Go to article overview

Competing Narratives in a Judicial Retention Election: Feminism versus Judicial Independence


Olson, Susan M., Batjer, Christina, Law & Society Review


Feminists' opposition to a state trial judge in a retention election provided an opportunity to explore important issues about legal consciousness and dif ferences between negative and affirmative resistance. Three questions about legal consciousness and resistance are addressed: What effect does an encounter with an allegedly bad judge have on people's legal consciousness? Under what circumstances will people engage in negative or affirmative resistance against a legal encounter they perceive as unjust? What instrumental effects on institutional practices and what constitutive effects on legal consciousness can such resistance have? The article draws on narrative analysis to explore the conditions for transformation of legal consciousness and mobilization of political action in a judicial retention election.

Storytelling pervades the legal process, as much scholarship has observed (e.g., Brooks & Gewirtz 1996). Despite the traditional view of law as a "logico-scientific" form of discourse that makes truth claims falsifiable through logic (Bruner 1986:11), the legal fact-finding process is clearly based on narrative forms of discourse. Parties and witnesses give testimony, and truth arises from assessing the verisimilitude of the stories.

Another way in which storytelling enters the legal system is in the processes for selecting and retaining judges. Stories about competence and character are told the public or the appointing authority. For example, the Senate confirmation hearings for Clarence Thomas could be viewed as a contest between the stories of Thomas as a sexual harasser and Thomas as an up-by-thebootstraps, self-made man. After his appointment an African American feminist complained that Anita Hill's story fell on deaf ears because black women have no story that resonates with the American public as much as Thomas's narrative of a "high-tech lynching" (Crenshaw 1992).

Elections, including those for judgeships, can be seen as stories told to voters. One argument for partisan over nonpartisan election of judges is that the former invokes a story that voters can relate to (namely, Democrats versus Republicans) and therefore generates more voter interest than the latter (Dubois 1986). In uncontested retention elections judges in theory run on the story of their records, but in reality there is usually no story at all and the voters know virtually nothing about the judge (Hall & Aspin 1987).1 In recent years the occasional exceptions tend to be ideologically charged retention elections in which organized interest groups challenge judges because they made the "wrong" decisions on hot-button issues such as capital punishment in California (Wold & Culver 1987) and abortion in Florida (Webster 1995:36-37). Here the challengers' story is typically about the bad, "activist" judge imposing his or her views on the public.

This article tells the story of a retention election that became a two-sided story when a grassroots group of women organized a challenge to a state trial court judge. In the summer of 1994 complaints suddenly burst on the public scene about a judge who had served for seven years and seemed to have at least an average, if not better, career on the bench to that point. His opponents charged the judge with prejudging issues and displaying bias on the basis of gender, religion, and sexual orientation. In response to these charges, organized support emerged for him that emphasized the importance of judicial independence. In the election the judge narrowly retained his seat with 50.4% of the vote.

This relatively rare challenge to a judge in a retention election provides the opportunity to examine important issues about legal consciousness. Legal consciousness, as Michael McCann (1994:7) defines it, is "the ongoing, dynamic process of constructing one's understanding of, and relationship to, the social world through use of legal conventions and discourses." Legal consciousness is revealed in and shaped by the conventions and discourses occurring in courtrooms, judicial opinions, everyday talk about rights and other legal topics, and also in judicial elections. …

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