[EL] Fwd: [UMD-LPBR-FULL] ELECTING JUDGES (Bonneau)

[Rick Hasen]

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Subject: 	[UMD-LPBR-FULL] ELECTING JUDGES (Bonneau)
Date: 	Tue, 9 Oct 2012 20:41:50 -0500
From: 	Paul Parker <pauleparker at gmail.com>
Reply-To: 	<wmcintosh at GVPT.UMD.EDU>
To: 	<UMD-LPBR-FULL at LISTSERV.UMD.EDU>



ELECTING JUDGES: THE SURPRISING EFFECTS OF CAMPAIGNING ON JUDICIAL
LEGITIMACY, by James L. Gibson

LAW AND POLITICS BOOK REVIEW
ISSN 1062-7421
Vol. 22 No. 10 (October 2012) pp. 469-472

An Electronic Periodical Published by The Law and Courts Section, The
American Political Science Association

Paul Parker, Editor
Department of Political Science
Truman State University  Kirksville, MO 63501 USA
Email: parker@ truman.edu

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******************************

ELECTING JUDGES: THE SURPRISING EFFECTS OF CAMPAIGNING ON JUDICIAL
LEGITIMACY, by James L. Gibson.  Chicago: University of Chicago Press,
2012. 240pp. Cloth $85.00.  ISBN 9780226291079.  Paper $27.50. ISBN
9780226291086.

Reviewed by Chris W. Bonneau, Department of Political Science,
University of Pittsburgh.

As part of the 2012 American Political Science Association Meeting, I
organized (and was scheduled to Chair) an Authors-Meet-Critics Session
on James Gibson’s latest book, ELECTING JUDGES: THE SURPRISING EFFECTS
OF CAMPAIGNING ON JUDICIAL LEGITIMACY.  Of course, that panel never
took place due to the cancellation of the meeting.  Prior to that
cancellation, Paul Parker (the editor of LPBR) asked the participants
if we were interested in writing up our remarks and publishing them in
a mini-symposium on the book.  I want to thank Paul for that
opportunity, especially in light of the cancellation of APSA.

As Chair of the panel, my primary task was to provide a brief overview
of Gibson’s data, methodology, and conclusions.  The thoughts of the
other participants (Melinda Gann Hall and Keith Bybee) follow mine,
and then Jim Gibson concludes the symposium with a response to our
comments.

The overarching research question of the book is: do judicial
elections erode the legitimacy of courts. This relatively
straightforward question is of enormous importance. There is an
assumption in the literature (that has been adopted by reform groups
and state legislatures) that elections are bad for the legitimacy of
the court system. Thus, elections should be abolished, otherwise the
very foundations of the judicial system are at stake.  Moreover,
despite the importance of the question, before ELECTING JUDGES we
simply had no good data to answer it. This book is vintage Gibson: (1)
he uncovers an interesting, important, and unanswered question; (2)
devotes considerable intellectual care to designing a series of
studies to answer it; and (3) presents his empirical results in an
honest, careful, and accessible manner.

I think this project provided Jim with more obstacles than some of his
other projects.  First, as Jim admits in the introduction to the book,
he is “not generally known for working on state courts” (p.ix).
Indeed, “becoming acquainted with the literature and players in the
field has been an interesting and occasionally challenging endeavor”
(p.ix).  On this front, Jim did an exceptional job overcoming the
pitfalls associated with a lot of the research on state courts. In a
perfect world, we would have longitudinal, nationwide data examining
attitudes toward the legitimacy of state courts. But we don’t.  And,
as Jim points out in the book, where we do have survey data and where
the questions asked are somewhat useful, the numbers of respondents in
each state are quite small.

To get around this, ELECTING JUDGES is based on a series of surveys
(and survey experiments) put in the field in Kentucky [*470] in 2006.
While there are always issues of generalizability from a single-state
study, given the state of the literature and a finite amount of time
and funds, this choice seems like the right one to me.  Kentucky is
chosen because it has some history of competitive elections, but that
history is not too long.  That is, studying elections in, say,
Minnesota would not be fruitful since that state has no history of
hotly contested elections. Likewise, looking at Texas would also not
be interesting since there have been hotly contested elections there
for over two decades.  Kentucky is somewhere in the middle, and,
because of this, is a good choice.  Would other states have been
equally good choices?  Sure.  But that, in itself does not negate the
appropriateness of the choice of Kentucky. Given more time and
funding, it would have been nice to have a partisan election state
included as well. But, again, when studying things like state courts,
hard decisions have to be made.  Finally, where possible, Gibson uses
a nationwide survey he administered to confirm the results from
Kentucky.  So, to answer the question of what can we learn about
judicial elections from one election cycle in one state?  A hell of a
lot more than we know to date.  And that, to me, is the great
contribution of ELECTING JUDGES.

Since many of you have not had the chance to read the book yet, I want
to summarize the major findings, some of which are discussed in more
detail by Hall and Bybee.

•  Receiving campaign contributions leads to citizens perceiving
policymaking as biased and the institution as illegitimate.  However,
this is true for state legislatures as well as state courts.

•  Judicial candidates taking positions on policy issues cause little
harm to the legitimacy of courts.  Candidates can engage in policy
debates with their opponents without undermining the legitimacy of
courts.

•  Attack ads also do not undermine legitimacy, as long as the attack
is confined to policy disagreement.  Ads that portray judges and
judicial candidates as “ordinary politicians” are damaging to the
legitimacy of courts.

•  Explicit policy promises (distinguished from general positions on
issues) are also damaging.  Interestingly, the same is true for state
legislatures.

•  Attitudes toward the Kentucky Supreme Court are shaped by factors
similar to the United States Supreme Court:  broader commitments to
democratic institutions and processes.

•  Table 5.2 presents results from a question on Expectations of a
Good Supreme Court Justice.  This chart is fascinating.  72.9% expect
a good justice to “protect people without power”; this is higher than
the 71.8% who expect justices to “strictly follow the law.”  Indeed,
fully 46.5% believe a good justice should “represent the majority” of
citizens in the state and 43.7% agree that a good justice should “give
my ideology a voice.”  This data points out a large chasm between how
legal scholars and judicial reformers think a good judge should act
and how citizens think a good judge should act.  Given this, it is not
surprising that many of the arguments leveled [*471] against judicial
elections (contentious campaigns, policy promises, attack ads) turn
out not to bother ordinary citizens all that much.

•  In Chapter 6, Gibson makes use of a 3-wave panel survey, put in the
field before, during, and after the 2006 election in Kentucky.  This
allows us to learn, for the first time, the degree to which campaign
activity affects legitimacy.  Building off Chapter 5 (where Gibson
found that citizens vary significantly in their expectations of
judges), he finds that the net effects of elections are positive in
terms of legitimacy.  That is, elections are legitimacy-conferring,
not legitimacy-detracting. Of course, the rougher the campaign, the
lower the legitimacy boost.  However, campaigns do not create a
legitimacy-deficit.  This conclusion has also been found using data in
Pennsylvania, so it does not appear to be limited simply to Kentucky.

Now that I have highlighted the major findings (which I find quite
persuasive), there are four topics that I think the book leaves
unresolved.  To be fair, all of these represent topics that are
outside the scope of this project.  But a good project raises as many
questions as it answers, and this is no exception.

First, it seems to me that the next step is to examine the link
between legitimacy and compliance at the state level.  Obviously, this
is not an easy task, as one would need both cross-sectional and
longitudinal data.  And we would need a way to operationalize
compliance in a reliable way.  But the work on legitimacy leaves me
wondering if legitimacy is simply useful because it is important for
institutions to be legitimate, or if there is something more. Can we
identify any tangible consequences to a lack of legitimacy?  For
example, in the context of state supreme courts, do incumbents have
more of an advantage in courts with higher legitimacy?  Do state
legislatures attempt to override courts with higher legitimacy less?
I think these are some questions that future research needs to
address.

Second, Gibson notes that future studies “must pay considerably more
attention to interstate differences and in particular to differences
across states in the perceptions and expectations citizens hold of
their judges” (p.55).  I could not agree more.  It is possible, for
example, that courts in, say, Minnesota, would suffer a
legitimacy-cost to rancorous campaigns since there is no history of
them in the state.  Voters may need to get acclimated to
rough-and-tumble campaigns before they can have a
legitimacy-conferring effect.  Likewise, perhaps after 25 years of
campaigns like this, voters are sick and tired of them and elections
thus decrease legitimacy in states like Texas.  At this point, these
are all unanswered questions. ELECTING JUDGES gives us a framework for
investigating these types of questions.

Third, are there any differences between state supreme courts and
lower courts?  Lower court races are even lower-salience and rarely
involve competitive campaigns.  Given that, do [*472] these sleepy
elections also confer legitimacy?  Or are they so noncompetitive that
they are irrelevant to legitimacy?  That is, I wonder if some measure
of competitiveness is necessary for elections to have the
legitimacy-conferring effect that Gibson finds.  I suspect that is the
case, just as it is for other offices.

My last thought pertains to the realm of applied politics:  how do we
get those involved in judicial reform to pay attention to work like
this?  This is something several of us have struggled with for years:
how do we get people to pay attention and use our results to make
sound policy judgments?  This work has something important to say
about the movement to end judicial elections.  Ignoring the evidence
Gibson presents would lead to politicians making poor policy choices.

I’ll close my remarks by simply quoting from my blurb that will appear
on the back cover of the book:  “James L. Gibson is an intellectual
giant in the field of judicial politics and ELECTING JUDGES may be his
more important contribution to date.  This is a first-rate piece of
scholarship that speaks directly to the central arguments in a highly
contentious ongoing debate.  For all interested in the judicial
selection process, Gibson’s evidence is powerful and simply cannot be
ignored.”
	
******************
Copyright 2012 by the Author, Chris W Bonneau
http://www.lpbr.net/2012/10/electing-judges-surprising-effects-of.html




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