In Defense of Judicial Elections

Chris W. Bonneau, Melinda Gann Hall

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781135852689
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

One of the most contentious issues in politics today is the propriety of electing judges. Ought judges be independent of democratic processes in obtaining and retaining their seats, or should they be subject to the approval of the electorate and the processes that accompany popular control? While this debate is interesting and often quite heated, it usually occurs without reference to empirical facts--or at least accurate ones. Also, empirical scholars to date have refused to take a position on the normative issues surrounding the practice.

Bonneau and Hall offer a fresh new approach. Using almost two decades of data on state supreme court elections, Bonneau and Hall argue that opponents of judicial elections have made—and continue to make—erroneous empirical claims. They show that judicial elections are efficacious mechanisms that enhance the quality of democracy and create an inextricable link between citizens and the judiciary. In so doing, they pioneer the use of empirical data to shed light on these normative questions and offer a coherent defense of judicial elections. This provocative book is essential reading for anyone interested in the politics of judicial selection, law and politics, or the electoral process.

Part of the Controversies in Electoral Democracy and Representation series edited by Matthew J. Streb.

Chapter 1
The Controversy over Electing Judges

In a recent op-ed piece in the Wall Street Journal, Sandra Day O’Connor, a retired Associate Justice of the United States Supreme Court, lamented the current state of affairs in American state judiciaries. Referring primarily to the rising costs of campaigns for the state court bench, Justice O’Connor wrote that interest groups “pouring money” into judicial elections “threaten the integrity of judicial selection and compromise public perceptions of judicial decisions.”¹ Of course, Justice O’Connor is not alone in her concerns. The American Bar Association has produced a report entitled Justice in Jeopardy, which explicitly calls for the eradication of judicial elections. According to the American Bar Association, “[w]hatever its historic rationale there can no longer be justification for contested judicial elections accompanied by ‘attack’ media advertising that require infusions of substantial sums of money.”² Joining Justice O’Connor and the American Bar Association are many of the nation’s most influential court reform advocacy groups, including the National Center for State Courts, and a veritable throng of legal scholars in the nation’s leading law schools. In short, there is an increasingly loud clamor in the United States to end the election of judges altogether.

With what appears to be a full-scale war being waged against judicial elections, especially partisan elections, there are few issues on the American political agenda more pressing today than the propriety of electing judges. Should judges be independent of democratic processes in obtaining and retaining their seats, or should they be subject to the approval of the electorate and the processes that accompany that control?

Many opponents of judicial elections rely primarily on arguments about the importance of judicial independence in American democracy to bolster their claims. These opponents start with the premise that judges are not like legislators or executives because judges are constrained by law and do not make overtly political judgments. From this perspective, the very nature of judging would dictate that judges be insulated from public pressures, including electoral politics. Critics of judicial elections also question whether citizens are capable of assessing judicial qualifications or are willing to participate in selection and retention processes. As Justice O’Connor asserts, “[v]oters generally don’t express much interest in the election of judges.” Part of the contention is that special interest activity and negative advertising will discourage voters from participating and will sway them against incumbents for arbitrary reasons, resulting in harmful consequences for judges or courts.

On the other side of the issue are proponents of electing judges, who rely primarily on arguments about the value of accountability and who recognize the inherently political nature of judicial decision making. Mostly a small handful of social scientists, these observers argue that, like other public officials, judges have considerable discretion and should be held accountable for their choices, at least at the state level where we would expect a close connection between public preferences and public policy, as well as significant variations in law across the states. They also challenge the negative portrait of judicial elections, citing evidence that indicates instead that judicial elections bear a striking resemblance to other types of elections and in some ways are the prototype for what elections should be in the United States. Moreover, 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.

Although this debate about independence and accountability is important and interesting, the public dialogue often is approached from a normative perspective without reference to facts, or at least accurate ones. For example, one of the leading attacks on judicial elections is the claim that voters know nothing about the candidates so that elections are decided by irrelevant, idiosyncratic factors such as candidates’ names.³ If true, this claim would strike at the heart of the argument favoring judicial elections and their ability to achieve any level of accountability in practice. After all, if voters have no idea what they are doing when selecting among candidates for state courts or are easily manipulated by campaign advertisements, then what is the point of having elections at all? The key caveat, though, is if true.

In this book we argue that, contrary to the claims of judges,⁴ professional legal organizations,⁵ interest groups,⁶ and legal scholars,⁷ judicial elections are democracy-enhancing institutions that operate efficaciously and serve to create a valuable nexus between citizens and the bench. We argue that, rather than being eradicated, judicial elections should be retained if not restored to their original form of partisan, competitive races, the situation that existed before modern reform advocates convinced the states to remove partisan labels and challengers from these contests. In making this argument, we rely on data on all state supreme court elections from 1990 through 2004. Overall, we find that many of the claims made by opponents of judicial elections are at best overstated and are at worst demonstrably false. In doing so, we briefly review the literature documenting the political nature of judicial choice and the naïveté of those who rely on normative, outmoded accounts of the judicial process.

This is a particularly timely topic for many different reasons, but perhaps most important is the changing nature of supreme court elections themselves in many states and the aggressive attacks from legal circles that these elections are drawing. As anyone knows who lives in a state where judges are elected, these races recently have become much more competitive and controversial,⁸ although a number of states have experienced competitive supreme court elections for decades.⁹ Even so, as these contests (particularly nonpartisan elections) have begun to look more like elections to other political offices in a growing number of states, fervor is rising from the legal community and advocacy organizations to eliminate them. In other words, judicial elections initially were opposed because challengers did not enter these races, incumbents rarely were defeated, and voters did not participate; now judicial elections are sharply criticized because the opposite is the case.¹⁰

In fact, judicial reform advocates have enjoyed two recent successes. In 2002, Arkansas stopped selecting judges in partisan elections and started choosing them in nonpartisan elections. Similarly, North Carolina abandoned partisan elections in 2004 for nonpartisan elections and initiated public financing to candidates who qualify. We will have much more to say about these states and their reforms in chapter 5. For now, it is worth noting that Arkansas and North Carolina have joined a sizable number of states that have modified judicial selection procedures over the past several decades in response to the dire prediction from judicial reformers that partisan elections will lead to the demise of state judiciaries. In total, thirteen states have abandoned partisan elections for nonpartisan elections (Arkansas, Georgia, Kentucky, Mississippi, North Carolina), the Missouri Plan (Colorado, Florida, Indiana, Iowa, Oklahoma, Tennessee, Utah), or gubernatorial appointment (New York), whereas New Mexico has adopted a hybrid plan of partisan elections for first-term candidates but retention elections for subsequent terms, much like the selection systems in Montana and Pennsylvania. Additionally, four states (Arizona, Nebraska, South Dakota, Wyoming) have switched from nonpartisan elections to the Missouri Plan, and Minnesota currently is considering following suit. If reform advocates are successful in Minnesota, then nineteen of the fifty states (38 percent) will have changed the way they elect judges, all in response to claims about the deleterious effects of partisan elections (and now nonpartisan elections) on American state judiciaries.¹¹

As we will show, these changes in the ways judges are selected and retained have predictable consequences for the efficacy of elections in those states and the operations of the court systems themselves—consequences that those advocating reform of the electoral system may not have intended or anticipated. We also will show that many of the most pressing concerns about the ills of judicial elections are not grounded in empirical reality.

That is our task in this book. We will use extensive data on state supreme court elections to examine systematically and empirically a number of critical questions relevant to the judicial elections controversy. Are voters willing to participate in the selection of judges, and under what conditions are citizens best mobilized? Do challengers randomly target incumbents or are there systematic forces that draw challengers into the electoral arena? What is the role of money in these races? Do expensive campaigns alienate voters to the point that they will not participate, and can incumbents or challengers simply buy supreme court seats? And, perhaps most importantly, what do voters appear to know when casting ballots in elections to the state high court bench? Are elections simply games of chance or manipulation by interest groups and other big spenders in judicial elections, or can we understand the electoral performance of incumbents in systematic ways that are indicative of rational political choices by challengers and the electorate?

Electing Judges in Historical Perspective

Understanding the history of electing judges is a necessary first step in evaluating the current controversy and the overall record of the court reform movement. Without question, choosing judges through democratic processes is an almost uniquely American and, historically speaking, relatively modern phenomenon.¹²

Consider judicial selection methods operating at the beginning of the nation’s history. At the nation’s founding, the states selected their judges much like their former British rulers: judges were appointed for lifetime terms, although there often were provisions for impeachment.¹³ In some states, legislatures made these appointments, and in other states governors did, but generally the selection of state court judges paralleled the selection of federal judges.¹⁴

Originally, judges were selected in this way because the judiciary was considered a weak institution without the power to reach important political judgments and thus was in no need of close public scrutiny. Moreover, courts were extremely deferential to legislatures because courts were heavily dependent on the other branches for appointment and, where lifetime terms were not granted, reappointment.¹⁵

Interestingly, selection schemes in which judges are appointed are being touted in today’s political dialogue as promoting independence from the electorate and other political actors. As the argument goes, judges should be free to make decisions independent of as many constraints and political factors as possible. When the ability to serve is not conditioned on winning elections, judges should be free to rule in the cases before their courts using legal criteria (such as the facts of the case, the law, and precedent) rather than fear about how the public will react or other factors irrelevant to the actual cases.¹⁶

It is important to note that proponents of appointment schemes in the contemporary sense are not really arguing for complete independence from all political actors. After all, judges who are appointed and need to be reappointed can hardly be said to be independent from the appointing authority (legislature, governor, or both). Thus, the independence argument really is an argument for independence from the electorate. Indeed, states now providing lifetime tenure for judges are the rare exception (see Table 1.1), and judges who are dependent upon the governor or the legislature for reappointment are far from independent in the strictest sense. Arguably, appointed judges who make decisions that are contrary to the policy preferences of the actor (or actors) who has (have) the power to reappoint them could be subject to the same severe sanction (i.e., expulsion from the bench) as elected judges who make decisions contrary to the preferences of the electorate. In fact, this dependence on the legislature or governor (the lack of independence of judges) was one of the reasons to move away from the appointment of judges to elections in the first place.¹⁷

Contemporary evidence drawn from the abortion controversy confirms the concerns about the lack of independence from the other political institutions in appointive systems. Brace, Hall, and Langer established that systems in which elites control retention can inhibit the exercise of judicial review, at least in the context of abortion litigation.¹⁸ Specifically, supreme court justices subject to retention by legislatures or governors are much less likely to docket constitutional challenges to restrictive abortion statutes, ceteris paribus. Broadly speaking, the willingness of courts to be active participants in the checks and balances system appears to be conditioned by judicial independence from the other branches of government.¹⁹

The appointment of judges was common until about 1830 and the rise of Jacksonian democracy (and demise of the Federalists). “Jacksonian democracy meant that the average citizen could not only use the extended franchise to pick his leaders, but he could share responsibility for governing.”²⁰ In terms of courts, this philosophy led to reforms to elect judges and to provide incumbents with shorter terms of office.

There were three primary reasons why judicial elections gained popularity. First, there was the manner in which judicial review was being exercised. Because judges were invalidating laws enacted by legislatures and in the process were making some of the states’ most important political decisions, it was argued that judges should be chosen by the electorate just like the legislature.²¹ Second, the legal profession widely hailed the movement toward an elected judiciary as “an opportunity to provide the judiciary with its own separate constituency, thus ensuring it some measure of independence from the legislature.”²² It was believed that, as an independent branch of government, the judiciary should not be an agent of the legislature. Third, popular elections allowed for the removal of incompetent and arrogant judges. Although judges could be impeached under appointive schemes, impeachment was regarded as too drastic a punishment for most forms of judicial misconduct or incompetence and thus was used sparingly.²³ In this regard, the grounds for impeachment were quite limited.

Table 1.1 Selection Systems for State Supreme Courts, 2007

Of course, the primary motivation for electing judges was the recognition that judges are important political actors and as such should derive their power from the people and not from a co-equal branch of government.²⁴ Indeed, the process of elections is the only process that can make judges completely independent from the legislature and governor. Further, competitive elections promote accountability: judges, like legislators, must answer to the electorate for their choices. Overall, we would expect judges chosen by democratic processes to reflect the political preferences of their states at the time they are chosen but also to be brought into line with the dominant coalition in the state by threat of electoral sanction.

An example relevant to today’s debate is instructive. Thirty-eight states in the United States currently authorize the death penalty as a sanction for certain categories of murder, and the United States Supreme Court has held that the death penalty per se does not run afoul of federal constitutional protections. Generally, we would expect judges in those states to uphold death sentences in the cases before their courts except in the case of reversible error at trial. But what about a judge who refuses to uphold the death penalty because of her own political preferences opposing capital punishment? In this situation, the judge would be disregarding the rule of law and specific mandates enacted by representative institutions reflecting public will. Should this judge be allowed to continue in office? Whereas it would be difficult to remove this renegade judge in an appointive system (i.e., voting “wrong” is not an impeachable offense or misconduct in the usual sense), voters in elective states could do so in the next election.²⁵

Critics of judicial elections make two central arguments. First, they claim that judges should not be subject to electoral sanction becau...