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

[Rick Hasen]

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Subject: 	[UMD-LPBR-FULL] ELECTING JUDGES (Gibson)
Date: 	Tue, 9 Oct 2012 20:42:46 -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.482-485

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

JUDICIAL LEGITIMACY, by James L. Gibson.  Chicago: University of
Chicago Press, 2012. 240pp. Cloth $85.00.  ISBN 9780226291079.  Paper
$27.50. ISBN  9780226291086.

James L. Gibson Souers Professor of Government, Washington University
in St. Louis
Professor Extraordinary in Political Science, and Fellow, Centre for
Comparative and International Politics, Stellenbosch University (South
Africa).

(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 is a
response to remarks prepared for that panel).

First, let me say that I deeply appreciate the willingness of the
panelists to take the time to read and think carefully about my new
book. These are busy scholars, filled with important and innovative
ideas of their own, so it is humbling that they would allocate their
precious time to this effort.

And, their comments about ELECTING JUDGES are absolutely spot-on,
including their various criticisms. Indeed, they are so accurate that
I have little to say in reply or defense (with a few exceptions, noted
below).

Instead, I thought it might be useful to try to extend this discussion
about electing judges by pointing to a handful of unanswered questions
that I believe emerge from my analysis. These are all issues touched
upon in the book, but that require, in my view, considerable
additional thought and inquiry.

What Is It About Elections that Generates the Effect? I have found
that elections, ipso facto, raise the legitimacy of courts, a finding
consistent with our discovery in Pennsylvania (Gibson et al. 2011). I
speculated that this may have to do with the fulfillment of
expectations about judicial accountability, but my empirical evidence
in support of that view is weak (at best). There may be other elements
of elections that contribute to this effect, including the exposure to
the symbols of judicial authority in campaign advertisements. Some
crystallization of court attitudes may also be taking place, although
I note that the scale’s reliability (as measured by Cronbach’s alpha)
does not change much from the t1 to the t3 measures. Perhaps elections
simply remind people (most of whom had forgotten) that their judges
are servants of the people, a legitimacy-enhancing fact. But whether
all elections have this effect – especially retention elections, which
are pretty close to sham elections – is unclear. Further work should
try to identify exactly what is going on here.

Expectancy Theory: Similarly, I have to date made only some progress
in explaining the variability in the expectations citizens hold of
their judiciary. These expectations shape a great deal of how people
react to campaign ads and to courts. Understanding their origins
better ought to be a research question of considerable importance.

Accountability and Independence: The simple view that accountability
and independence form the opposite ends of a continuum ought to be
reconsidered. I have no doubt that the American people do not want
judges to be accountable to lynch-mobs, nor perhaps to legislatures
and governors. Nor do they seek judges who are independent of the
popular will, the general value consensus, as in judges who would turn
back the clock through extreme originalism. Judicial independence can
mean the freedom to do the right thing; it can also mean the freedom
to do the wrong thing. More finely tuned, perhaps multidimensional
measures of mass preferences on the balance between accountability and
independence need to be developed.

Ad Judgments: My analysis shows that citizens vary considerably in how
they judge campaign ads. However, I have not yet conducted much
analysis of this variability. To the extent that ad judgments are
heavily influenced by the attributes of the respondent, then ads are
themselves endogenous, causing some difficulties for the analysis. Do,
for instance, those with different levels of expressed legitimacy for
the courts judge ads differently?

Ad Innuendo: Perhaps the most obnoxious of ads are those that falsely
attribute to incumbent judges dire consequences of their decisions (in
the presidential context, Willie Horton-type ads). Fact-checking
organizations exist, but little systematic research into their
effectiveness has been reported. Perhaps more research on perceptions
of ads might discover effective means of counteracting factually
correct ads that falsely imply causal connections. I strongly doubt
whether the defense to these attacks that “the law made me do it,” to
which some judges are attracted, will be of much value. Only further
empirical analysis can tell.

Campaign Contributions: The American people want judges to tell them
where they stand on legal policy issues; attack ads are only mildly
off-putting; but campaign contributions are widely judged to be
problematic (for judges and for other elected officials). How can the
de-legitimizing effects of campaign contributions be mitigated?

Unfortunately, our research in West Virginia shows that even
independent expenditures create a perception of a conflict of interest
(Gibson and Caldeira 2011, forthcoming). Independent expenditures, of
course, are extremely difficult to control. CAPERTON V. MASSEY is
often cited as some sort of poster-child, but it must be remembered
that the expenditure on behalf of the elected judge was by a private
citizen, not a coal company, through a private interest group
completely unrelated to the judge, and that the seemingly biased judge
decided a legal issue that split the other four “unbiased” judges two
versus two. More research on how citizens form their impressions of
campaign contributions, and whether their views are subject to
persuasive appeals, seems warranted.

Attitudes Outside the Election Period: I have suggested in the book
that attitudes toward courts are generally in hibernation, but that
elections may awaken them, allowing citizens to update their views
before they go back into sleep mode. However, I produced not a
scintilla of proof that this takes place. It is hard to want to expend
precious resources on an election study outside the election season –
when “don’t know” may be the dominant answer to our questions – but
the temporal dynamics of opinions ought to receive more attention from
scholars.

Knowledge of Courts: Many who read this book will be skeptical that
citizens hold any meaningful attitudes toward state courts, citing
widespread ignorance of courts in their indictment. The study of
political knowledge, including knowledge of courts, is undergoing a
revisionist renaissance right now, with researchers (including
Caldeira and I) purporting to be uncovering vastly more knowledge than
is typically assumed (e.g., Gibson and Caldeira 2009). This is a line
of inquiry that must be followed-up, although not with the assumption
that knowledge is chronically accessible. We need better models of how
people learn/forget/re-learn political and legal information and how
that varies over time.

Generalizability: This is a single-state study, so, as the reviewers
have noted, additional research in other states, including partisan
and retention states, is warranted. I do note, however, that the book
reports a replication of some of the Kentucky findings with a national
sample. Similarly, our findings on legitimacy in West Virginia (Gibson
and Caldeira 2012) have been largely replicated with national data
(Gibson and Caldeira forthcoming).

My findings do suggest that there are some conditions under which
campaign activities undermine judicial legitimacy. In the Kentucky
case, these conditions were extremely rare. One can imagine, however,
scenarios more extreme than Kentucky, in which the negative
consequences of campaigning are more substantial. Greater attention to
these extreme cases (e.g., Wisconsin?) would be illuminating in
suggesting the boundaries to the argument I present in ELECTING JUDGES

As I write these comments, I am reminded so much of the contributions
other scholars have made to defining the issues and thinking about
theories and hypotheses. In my case, what could be a more perfect
stimulant to the research reported in ELECTING JUDGES than the comment
by Bonneau and Hall (2009, p.2) that: ". . . elections generally are
one of the most powerful legitimacy conferring institutions in
American democracy and should serve to balance if not counteract other
negative features associated with campaigns." ELECTING JUDGES
resoundingly confirms their speculation. Seeing the scientific process
at work – with one scholar making a contribution, thus stimulating
others to think more, generating new research and ever increasing
approximations of truth – is exhilarating. Ours is a collective
effort, and the field of law, public opinion, and state judicial
politics can boast of having the attention of some of the best
scholars in our subfield. It’s a great feeling to be part of that
enterprise.

REFERENCES

Bonneau, Chris W., and Melinda Gann Hall. 2009. IN DEFENSE OF JUDICIAL
ELECTIONS. New York: Routledge. (Reviewed at
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/bonneau-hall1109.htm).

Gibson, James L., and Gregory A. Caldeira. Forthcoming. “Judicial
Impartiality, Campaign Contributions, and Recusals: Results from a
National Survey.” JOURNAL OF EMPIRICAL LEGAL STUDIES.

Gibson, James L. and Gregory A. Caldeira. 2012. “Campaign Support,
Conflicts of Interest, and Judicial Impartiality: Can Recusals Rescue
the Legitimacy of Courts?” JOURNAL OF POLITICS 74 (1): 18-34.

Gibson, James L., and Gregory A. Caldeira. 2011. “Has Legal Realism
Damaged the Legitimacy of the U.S. Supreme Court?” LAW AND SOCIETY
REVIEW 45 (1): 195-219.

Gibson James L. and Gregory A. Caldeira. 2009. CITIZENS, COURTS, AND
CONFIRMATIONS: POSITIVITY THEORY AND THE JUDGMENTS OF THE AMERICAN
PEOPLE. Princeton, NJ: Princeton University Press. (Reviewed at
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/gibson-caldeira1009.htm).

Gibson, James L., Jeffrey A. Gottfried, Michael X. Delli Carpini, and
Kathleen Hall Jamieson. 2011. “The Effects of Judicial Campaign
Activity on the Legitimacy of Courts: A Survey-Based Experiment.”
POLITICAL RESEARCH QUARTERLY 45: (1): (forthcoming)
	
CASE REFERENCE

CAPERTON V. A.T. MASSEY COAL CO. 556 U.S. --- (2009).

***********
Copyright 2012 by the author, James L. Gibson.
http://www.lpbr.net/2012/10/electing-judges-surprising-effects-of_2472.html



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