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

[Rick Hasen]

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Subject: 	[UMD-LPBR-FULL] ELECTING JUDGES (Bybee)
Date: 	Tue, 9 Oct 2012 20:42:21 -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. 477-481

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 Keith J. Bybee, College of Law and Department of Political
Science, Syracuse University.  Email: kjbybee [at] maxwell.syr.edu.

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

Judges are elected in many parts of the United States.  Should these
judicial elections be conducted in the same way as other elections for
public office?  Or should judicial elections be subject to special
regulations and constraints?

The United States Supreme Court gave a partial answer to these
questions in REPUBLICAN PARTY OF MINNESOTA V. WHITE (2002) when it
ruled that candidates for the bench could not be prevented from
announcing their views on disputed legal or political issues.  At
least when it comes to the discussion of general policy positions, the
Court held that judicial candidates must be given the same freedom as
anyone else running in an election.

In his important new book, Gibson uses the Court’s decision in WHITE
as a springboard for examining the effect of judicial elections on
“the perceived impartiality and institutional legitimacy of courts”
(p.4).  Gibson argues that WHITE, like many judicial rulings, is
filled with empirical assumptions.  His aim is to test WHITE’s
assumptions with a battery of surveys and survey-based experiments
conducted primarily in Kentucky, a state whose experience with
judicial elections broadly reflects national trends.

Gibson’s particular concern is with the empirical assertions of the
WHITE dissenters.  The dissenting justices seem to believe that policy
talk aired during judicial campaigns impugns judicial impartiality
and, as a result, degrades judicial legitimacy (pp.25-26).  The
question is whether there is any data to support such claims.

Carefully elaborating and assessing his survey results, Gibson argues
that the WHITE dissenters are on shaky ground.  The central issue is
that public expectations about appropriate judicial behavior are far
from homogenous. To begin with, Gibson finds that roughly one-fifth of
survey respondents appear to accept the idea that courts are, in
essence, ordinary political institutions. For this group, perceptions
of judicial legitimacy are unaffected either by judicial candidates’
direct policy promises or by judicial candidates’ acceptance of
campaign contributions from groups seeking to change the law
(pp.60-61). The same percentage of the public also believes that state
supreme court judges should make decisions according to their personal
party affiliation (p.94).  And this political assessment of the courts
is not just a state-level phenomenon. Gibson reports that around 18%
of Americans believe that members of the US Supreme Court should “base
their decisions on whether [*478] they are a Republican or a Democrat”
(p.12).  Contrary to the reasoning of the WHITE dissenters,
individuals with pronounced political views of the judiciary are
unlikely to be unsettled by the mere statement of policy positions
during a judicial campaign.  Indeed, as Gibson notes, it is unclear
“whether any political activity by judicial candidates would cause
doubt among this group” (p.61).

The majority of survey respondents do not share this thoroughly
political view of the courts, and their assessment of the bench drops
when presented with examples of direct policy promises or of campaign
contributions (p.21).  Since campaign contributions are already an
unavoidable reality in many judicial elections, and since policy
promises will inevitably result should judicial candidates be
completely unconstrained, Gibson acknowledges that observers are
correct to worry about judicial legitimacy (p.139). Yet the level of
concern should not be exaggerated for Gibson also finds that most
ordinary people are comfortable with a degree of politics in judicial
campaigns.

Most Americans recognize that judges have some discretion to make
policy and that judicial policymaking will be informed by political
beliefs.  As a consequence, and contrary to the WHITE dissenters, the
core activity of an election, with candidates openly communicating
their views on contested issues, does not diminish judicial
legitimacy. In fact, Gibson finds that even those instances where
people are deeply offended by some aspect of a judicial campaign (for
example, where an individual encounters a campaign advertisement that
she finds to be extremely partisan, unfair, and inappropriate) the
overall support for the judiciary does not significantly decrease
(p.123).  This is so because the fact of the election itself confers
legitimacy on the courts, providing a measure of support that is
typically greater than the negative impact of any campaign activity
that violates the majority’s sense of what is appropriate in a
judicial race.

Thus for a majority of the public it “is not politics per se that is
objectionable” in a judicial election because most people consider the
courts to be at least partially political (p.134).  Feathers will be
ruffled only some of the time.  When a specific campaign activity
makes a judicial candidate look self-interested and presents the
judiciary as being no different from any other political institution,
an important line has been crossed for most people and judicial
legitimacy is threatened (though we should expect (i) that the fact of
election will continue to buoy judicial legitimacy; and (ii) that
around one-fifth of the public will remain unfazed under almost any
circumstances). Gibson’s argument, supported by extensive survey
results, is that significant political activity can occur without
fatally undermining the bench in the eyes of most Americans.

Gibson also argues that the diversity of public opinion goes beyond
the division between those who see the judiciary as special and
limited kind of political institution, and those who consider it to be
a political institution full stop.  He finds that people living in
states without judicial elections (a minority in the US) are critical
of activity that residents of states with judicial elections find
unproblematic.  In particular, people in [*479] states without
judicial elections say that policy statements by judges detract from
judicial legitimacy.  It appears, as Gibson notes, that expectations
about appropriate judicial behavior are influenced by prevailing
practice and that “experience with [judicial] campaigning leads to
acceptance of it” (p.55).

Moreover, Gibson finds that the majority who accept that the courts
are a specific sort of political institution hold a complex and
contradictory set of beliefs (as Gibson notes, I reach the same
conclusion in my own work: Bybee 2011). Over 70% of survey respondents
believe that a good state supreme court justice should “strictly
follow the law no matter what people in the country may want” (p.93).
At the same time, nearly three-quarters of respondents (including 75%
of those who say justices should “strictly follow the law no matter
what”) also believe that the justices should be “especially concerned
about protecting people without power from people and groups with
power” (p.93). In short, most people expect the high bench to
rigorously adhere to legal principle and to pursue broad political
objectives all at once.  Again contrary to the WHITE dissenters, such
conflicting views do not yield a simple verdict about the effects of
politically inflected judicial campaigns.

Gibson’s multifaceted argument about the complexity of public
expectations is a truly valuable addition to the existing debate.  His
finely detailed description of public opinion significantly qualifies
the oft-made claim that judicial elections can have only a negative
impact on popular assessments of the judiciary.  His careful analysis
also provides a useful companion to recent work exploring how the role
of state judicial elections and the meaning of state judicial
independence has altered over time (Tarr 2012). More broadly, Gibson’s
meticulous research contributes to a long line of scholarship that
considers heterogeneous and conflicting public beliefs to be a durable
foundation for the rule of law (Arnold 1935; Shklar 1964; Ewick and
Silbey 1998). By clearly demonstrating that the public possesses a mix
of legal and political views about courts, Gibson helpfully moves
scholarly discussion away from the criticism of a politicized
judiciary and toward the investigation of how a politicized judiciary
continues to be accepted as an authoritative legal arbiter.

Good scholarship often leaves readers asking for extensions of the
core arguments and Gibson’s study is no exception. I would have liked
to see Gibson assess the empirical assumptions of the WHITE majority
as well as those of the WHITE dissenters. Gibson does not purport to
address every aspect of the Court’s decision, but he is centrally
concerned with the factual basis of the ruling.  If the majority and
dissenting opinions in WHITE were perfectly opposed to one another,
then a refutation of the empirical assumptions in one opinion would
necessarily validate the assumptions of the other.  Yet the opinions
in White are not in perfect opposition:  the majority does not reject
the dissenters’ support for judicial regulation by arguing that
judicial candidates must be allowed ALL the freedoms enjoyed by other
candidates running for public office.  The WHITE majority explicitly
refuses to rule that judicial candidates should be free of all [*480]
special regulation (WHITE, p.702) and, as Gibson acknowledges
(pp.143-44), a number of restrictions on judicial campaigns have in
fact been upheld in the wake of WHITE.  What sort of empirical
assumptions underwrite the WHITE majority’s ruling that some – but not
all – of the existing restrictions on judicial elections are invalid?
Are these empirical assumptions consistent with Gibson’s findings
about acceptable judicial behavior?

In a concurring opinion in which he writes only for himself, Justice
Anthony Kennedy does take the position that judicial candidates have
the same freedoms as all other candidates (WHITE, p.716).  Kennedy
suggests that any damaging political speech uttered by unrestrained
judicial candidates can be countered by speech from “the legal
profession, the legal academy, the press and voluntary groups,
political and civic leaders, and all interested citizens” urging “a
higher and better understanding of the judicial function” (WHITE,
p.717).  Kennedy’s faith in the efficacy of counter-speech during a
judicial election runs contrary to Gibson’s finding that it is
precisely in the context of such elections that the public is likely
to embrace political talk about the judiciary.  Here, too, I would
have liked to see Gibson unearth and analyze underlying empirical
assumptions.

I also think that Gibson could have fruitfully extended several of his
more theoretical discussions.  His speculation about why legal elites
appear to believe that all policy statements made during judicial
campaigns are destructive (pp.132-34) made me curious about another
group:  the roughly 20% of the public that seem to have a completely
political view of the courts.  This group is certainly at odds with
elites, and it also parts company with the majority.  I would welcome
Gibson’s thoughts about what drives this wholly political conception
of judging.  I also would welcome more discussion about the
legitimacy-conferring power of elections. Gibson ultimately argues
that elections engender support for the courts (even though some
campaign activities may chip away at judicial legitimacy) because of
accountability.  It is because elections provide a mechanism to keep
the courts accountable to the preferences of the majority that most
people see elected judges as legitimate.  In my view, Gibson could
have enhanced this “logic of electoral legitimacy” (p.131) by
discussing the role of consent.  Elections are certainly a means of
ensuring accountability, but they are also a way of expressing
consent.  To participate in an election is to consent to be governed
by the result even if one’s preferred candidate loses. Such electoral
consent is less a matter of directly controlling government authority
than it is of granting permission for authority’s exercise.  As
scholars have shown, the solicitation of consent is an ancient
strategy used by the earliest courts to ensure legitimacy and
compliance (Shapiro 1981), and consent is still relied heavily upon by
the modern judiciary (Tyler 1990).  Were Gibson to bring consent into
his discussion of elections more explicitly, he would be able to make
clearer connections between his study and the well-established
literature on the importance of consent in the judicial process.

Of course, the fact that I think Gibson could have developed his
arguments [*481] further does not diminish my admiration what he has
achieved.  ELECTING JUDGES is a clearly written, empirically rich book
that provides an indispensible map of the American public’s diverse
expectations about appropriate judicial behavior.  Scholars,
policymakers, and jurists alike will learn a good deal about the
determinants of judicial legitimacy by reading Gibson’s work.

REFERENCES:

Arnold, Thurman W. 1935. THE SYMBOLS OF GOVERNMENT. New Haven: Yale
University Press.

Bybee, Keith J.  2011.  “The Rule of Law is Dead!  Long Live the Rule
of Law!,” in Charles Gardner Geyh, ed., WHAT’S LAW GOT TO DO WITH IT?
WHAT JUDGES DO, WHY THEY DO IT, AND WHAT'S AT STAKE. Stanford:
Stanford University Press.

Ewick, Patricia and Susan Silbey. 1998. THE COMMON PLACE OF LAW:
STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.

Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS.
Chicago: University of Chicago Press.

Shklar, Judith N. 1964. LEGALISM: LAW, MORALS, AND POLITICAL TRIALS.
Cambridge: Harvard University Press.

Tarr, G. Alan. 2012. WITHOUT FEAR OR FAVOR: JUDICIAL INDEPENDENCE AND
JUDICIAL ACCOUNTABILITY IN THE STATES. Stanford: Stanford University
Press.

Tyler, Tom R. 1990. WHY PEOPLE OBEY THE LAW. New Haven: Yale University Press.

CASE REFERENCES:

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

**********
Copyright by the Author, Keith J. Bybee
http://www.lpbr.net/2012/10/electing-judges-surprising-effects-of_6517.html


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