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

[Rick Hasen]

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Subject: 	[UMD-LPBR-FULL] ELECTING JUDGES (Hall)
Date: 	Tue, 9 Oct 2012 20:42:05 -0500
From: 	Paul Parker <pauleparker at gmail.com>
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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.473-476

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 Melinda Gann Hall, Professor of Political Science,
Michigan State University.

(editor’s note: James L. Gibson’s Electing Judges was scheduled to be
the subject of an "Author Meets Critics" roundtable at the (cancelled)
2012 American Political Science Association Meeting. This review is
drawn from remarks prepared for that panel.)

James L. Gibson’s ELECTING JUDGES: THE SURPRISING EFFECTS OF
CAMPAIGNING ON JUDICIAL LEGITIMACY is a perfect blend of theoretically
driven empirical political science scholarship and practical politics.
In this pathbreaking volume, Gibson effectively sets the standard for
theoretical and methodological rigor in scientific studies of judicial
legitimacy. On the practical side, Gibson’s penetrating analysis goes
straight to the heart of the controversy over electing judges. In
convincing terms, Gibson disproves the conventional wisdom of how
Americans perceive judges, courts, and the judicial selection process
while bringing a new level of conceptual clarity to the study of state
judicial legitimacy. ELECTING JUDGES rests on carefully delineated
assumptions that draw a sharp distinction between normative and
empirical theory while building significantly on the concepts of
expectancy and positivity bias. In empirical design, interpretation of
complicated results, and theoretical craftsmanship, Gibson’s latest
work is masterful.

Specifically, Gibson utilizes a representative three-wave panel survey
in Kentucky and a national survey to explore two avenues of inquiry.
First, Gibson assesses the impact of campaign activities in judicial
elections on the legitimacy of state courts (i.e., individual
perceptions of fairness and impartiality of judges and their
decisions). Second, Gibson evaluates the nature and sources of diffuse
support (i.e., institutional loyalty).

Using hypothetical vignettes imbedded in the surveys and actual ads
from the 2006 Kentucky Supreme Court elections, Gibson analyzes three
distinct aspects of campaigning:  1) the use of attack ads, 2) the
announcement of policy positions, including promises to prejudge
certain issues, and 3) the acceptance of campaign contributions. He
also draws comparisons between the Kentucky Supreme Court and Kentucky
Senate.

Through a meticulous analysis of the various samples and theoretically
selected subsets of respondents, including respondents in election
versus appointment states and respondents with knowledge of the courts
versus those without, Gibson refutes two central assumptions
dominating the judicial selection debate and extant work on judicial
legitimacy: 1) that citizens uniformly value judicial independence
over accountability and 2) that citizens perceive electioneering by
judicial candidates unfavorably to the detriment of judicial
legitimacy. [*474]

ELECTING JUDGES also provides an extensive body of evidence that
collectively paints a fascinating though complex picture of state
citizenries and their perceptions of judges and courts. Among the most
intriguing results is the fact that the Kentucky Supreme Court is not
obscure to its citizens, whose loyalty toward this institution is
shaped by the same types of forces affecting support for the United
States Supreme Court. Also significant are the marked differences in
responses to some aspects of electioneering between respondents in
states utilizing elections and states using appointment processes to
staff state courts. But foremost among the contributions of this work
is the finding that electing judges is a strongly legitimizing force
that eclipses any harmful effects of campaigning, including those
stemming from campaign contributions. The significance of this cannot
be overstated. Gibson essentially has shaken the bedrock of much of
the claims from the scholarly and advocacy communities about judicial
campaign politics.

Notably, ELECTING JUDGES does not present the somewhat familiar
disjunction in findings between experimental (field or laboratory
based) and other types of empirical analysis (see, e.g., Barabas and
Jerit 2010). Gibson’s principal results are consistent with
aggregate-level studies testing the voter disaffection hypothesis in
state supreme court elections. These studies use ballot roll-off as an
observable behavioral manifestation of any cynicism and alienation
brought about by negativity and other aspects of aggressive campaigns,
and show that neither negativity nor campaign politics produces
deleterious effects consistent with the disaffection hypothesis.
Attack advertising enhances rather than reduces citizen participation
(Hall and Bonneau 2012) and intense electoral politics in the form of
tight margins, big spending, and quality challengers mobilize rather
than demobilize voters (e.g., Baum and Klein 2007; Hall 2007, Hall and
Bonneau 2008).

The central findings of ELECTING JUDGES also are immune to traditional
concerns about the external validity of experimental designs.
Generally, experiments raise questions about real-world applications,
including questions about whether brief events like campaigns, which
occur within a complicated political context, can have a direct
impact, for what duration, and with what consequences. In ELECTING
JUDGES, the post-election survey conducted several months after the
2006 elections for the Kentucky Supreme Court increases confidence
about impact and duration. But particularly compelling is the fact
that political scientists deem as axiomatic the principle that
elections are powerful agents of political legitimacy. Thus, Gibson’s
key finding about the strongly legitimizing impact of electing judges
is consistent with one of the most fundamental precepts of political
science.

The lessons of ELECTING JUDGES will be revelatory to all scholars
interested in judicial legitimacy and the politics of state courts but
will be acutely so to the legal academy, anti-elections advocacy
groups, and political scientists premising their arguments and
conclusions on normative theories of the judiciary. In fact, the very
foundation of much of the argument commonly used to criticize the
[*475] practice of electing judges is undermined by this work.
Nonetheless, Gibson remains agnostic in the normative debate about how
best to select and retain judges.

If there are limits to this excellent book, it is only a minor point
related to framing: ELECTING JUDGES seems to accept the bold claims
typically made about the transformative effects of REPUBLICAN PARTY OF
MINNESOTA V. WHITE (2002). In fact, scholars know remarkably little
about judicial campaigns of the past, despite defeat rates in state
supreme court elections that met or exceeded defeat rates for other
important offices at least since the 1940s (e.g., Dubois 1980; Hall
2001; Kritzer 2011). Even so, Schotland (1985, p.78) described
judicial elections in the 1970s and early 1980s as becoming “noisier,
nastier, and costlier,” an iconic characterization that became the
battle cry for judicial reformers, especially the critics of partisan
elections.  Brandenburg and Schotland (2008, p.1236) further observed
that “[a]t least back into the 1980s, ads run in judicial campaigns
have been so disturbing that they are presented as horror cases when
legislators and others consider changes in judicial selection
methods.”  Thus, while White altered the rules of campaign engagement
in some states (i.e., the nine states with announce clauses at the
time of WHITE), caution is advisable in inferring whether any trends
in campaign politics are directly associated with WHITE in partisan
elections and those nonpartisan election states that never had
announce clauses in the first place. But one of the most impressive
aspects of this landmark volume is that Gibson inspires us to want to
know more about a subject that has received scant scholarly attention.

In sum, ELECTING JUDGES is the most complete and compelling depiction
of state judicial legitimacy ever published. This study also is a
template for how to conduct methodologically rigorous and
theoretically directed political science research. For anyone
interested in the fascinating topics of judicial legitimacy, judicial
selection, survey experiments, or bridging the gap between science and
politics, ELECTING JUDGES cannot be missed. Indeed, this superbly
crafted and thought-provoking work should be the cornerstone of any
serious discussion of institutional reform.


References

Barabas, Jason and Jennifer Jerit. 2010. “Are Survey Experiments
Externally Valid?” AMERICAN POLITICAL SCIENCE REVIEW 104 (May):
226-242.

Baum, Lawrence and David Klein. 2007. “Voter Responses to
High-Visibility Judicial Campaigns.” In RUNNING FOR JUDGE: THE RISING
POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS, Matthew
Streb, ed. New York: New York University Press.

Brandenburg, Bert and Roy A. Schotland. 2008. “Justice in Peril: the
Endangered Balance Between Impartial Courts and Judicial Election
Campaigns.” GEORGETOWN JOURNAL OF LEGAL ETHICS 21 (Fall): 1229-1258.

Dubois, Philip L. 1980. FROM BALLOT TO BENCH: JUDICIAL ELECTIONS AND
THE QUEST FOR ACCOUNTABILITY. Austin, TX: University of Texas Press.
[*476]
Hall, Melinda Gann. 2001. “State Supreme Courts in American Democracy:
Probing the Myths of Judicial Reform.” AMERICAN POLITICAL SCIENCE
REVIEW 95 (June):  315-330.

Hall, Melinda Gann. 2007. “Voting in State Supreme Court Elections:
Competition and Context as Democratic Incentives.” JOURNAL OF POLITICS
69 (November): 1147-1159.

Hall, Melinda Gann and Chris W. Bonneau. 2008. “Mobilizing Interest:
The Effects of Money on Citizen Participation in State Supreme Court
Elections.” AMERICAN JOURNAL OF POLITICAL SCIENCE 52 (July): 457-470.

Hall, Melinda Gann and Chris W. Bonneau. 2012. “Attack Advertising,
the WHITE Decision, and Voter Participation in State Supreme Court
Elections.” POLITICAL RESEARCH QUARTERLY: Online First January 20.

Kritzer, Herbert M. 2011. “Competitiveness in State Supreme Court
Elections, 1946-2009.” JOURNAL OF EMPIRICAL LEGAL STUDIES 8: 237-259.

Schotland, Roy A. 1985. “Elective Judges’ Campaign Financing: Are
State Judges’ Robes the Emperor’s Clothes of American Democracy?”
JOURNAL OF LAW & POLITICS 2: 57-167.

CASE REFERENCE:

REPUBLICAN PARTY OF MINNESOTA V. WHITE.  2002.  536 U.S. 765.

**********
Copyright 2012 by the Author, Melinda Gann Hall.
http://www.lpbr.net/2012/10/electing-judges-surprising-effects-of_9.html


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