The Popular Legitimacy of Judicial Elections

Almost ninety percent of state judges must seek the support of voters either to win a seat on the bench or to retain that seat.  During recent decades, state judicial elections have become more fiercely contested—“nastier, noisier, and costlier” in the view of their critics–particularly when seats on the state supreme court are at stake. The cost of judicial campaigns has skyrocketed, as have independent expenditures by interest groups. Reliance on TV ads in judicial races has increased dramatically, and the harshness of campaign rhetoric has escalated.  In 2002, the U.S. Supreme Court in Republican Party of Minnesota v. White ruled that states could not prohibit candidates for judicial office from making statements on contested issues that might come before them in litigation.  Rejecting claims that such statements would fatally undermine popular trust in judicial impartiality, a five-member majority held that judicial candidates, like those for other offices, could make policy statements in running for office, because voters might otherwise be deprived of the very information they need to make informed choices.  As a result of these developments, judicial elections increasingly resemble races for other political offices.

The American Bar Association, the American Judicature Society, and other groups have long decried what they see as the “politicization” of judicial selection. They insist that if judicial campaigns come to resemble those for other offices, this will suggest that courts are no different than other political institutions, and this will erode public confidence in the courts. Yet as James Gibson observes in Electing Judges, there is little evidence supporting this claim. To test it, Gibson conducted a rigorous study of how citizens form their ideas about judicial impartiality and the legitimacy of courts, focusing on how political campaigns affect such judgments. Because his findings call into question many of the assertions made by critics of judicial elections, it is useful at the outset to describe how he arrived at his results.

Gibson’s study involved a panel survey of citizens in a single state (Kentucky), which elects its judges in non-partisan elections. Gibson conducted the survey via telephone interviews before, during, and after the election campaign of 2006. This multi-stage approach permitted consideration both of how attitudes about state courts were formed and how they shifted as a result of exposure to judicial campaigns. A distinctive feature of Gibson’s study was his use of experiments embedded within the surveys.   Interviewees were presented with short vignettes about the campaign activities of a candidate for public office and then questioned about whether such a person could serve as a fair and impartial office-holder and whether the candidates’ activities affected their confidence in political institutions. The study varied the stories by changing the election race (a candidate for a judgeship versus a candidate for the state legislature) and by changing the character of the campaign activity (accepting campaign contributions, attacking one’s political opponent, or announcing one’s own policy positions).  By doing so, Gibson was able to compare popular attitudes toward judicial campaigns with attitudes toward campaigns for another low-salience state office and to assess the effects of various types of campaign activities on voter confidence in candidates and in the institutions in which they would serve.  Finally, to achieve a broader perspective, Gibson compared his findings with those of previous researchers, in particular relating them to a nationwide survey in 2001 conducted by Justice at Stake, a prominent NGO opposed to judicial elections.

Gibson’s findings are often surprising and always provocative.  He found that judicial elections do not necessarily undermine the legitimacy of the judiciary.  Thus support for and confidence in the Kentucky Supreme Court rivaled the support for the United States Supreme Court, despite the fact that the Kentucky justices were elected. Moreover, respondents’ confidence in the Kentucky court did not vary depending on the self-described partisan or ideological identity of respondents.  Many of those concerned about the effects of campaign activity on judicial legitimacy have assumed that citizens share the legal profession’s view that politics undermines judicial independence and hence judicial legitimacy.  Gibson’s research suggests, however, that public attitudes are more diverse and more complex.  While some respondents shared the legal profession’s strong concern about judicial independence, many others favored judicial independence from the executive but were skeptical of judicial independence from the community and its values.  These differing expectations regarding judges affected how citizens evaluated the judiciary and judicial campaigning.  Many respondents believed that mechanical jurisprudence was either undesirable or unattainable, and there was strong support for a relatively politicized model of judging. Unsurprisingly, those who endorsed this political understanding of the courts wanted more information on the views of those they might elevate to the bench, since those views would affect their performance.  Moreover, although they valued judicial efforts to act impartially, they also believed that judges should in some sense reflect the views of their constituents.

Two novel aspects of Gibson’s analysis of political campaigns deserve particular attention. First, Gibson compared popular attitudes toward judicial campaigns with attitudes toward campaigns for the state legislature.  This comparison revealed, quite surprisingly, that voters have similar expectations about the selection of judges and legislators rather than sharply distinguishing between political and judicial actors.  Second, rather than merely assessing popular attitudes toward judicial election campaigns, Gibson differentiated various types of campaign activity—from candidates stating their own policy preferences to criticizing their political opponents to accepting campaign contributions—and assessed the effects of each on the legitimacy of the courts.

He found strong popular disapproval of judges or candidates for judicial office receiving campaign contributions.  Whatever effect such contributions might have on judicial decisions, Gibson’s poll data suggested that most respondents were convinced that contributions influenced judicial rulings, and the conclusion that contributions affected judicial impartiality undermined popular support for the courts. Yet Gibson reported similar results when respondents were questioned about campaign contributions to state legislators, that is, they believed that legislators’ votes were likewise influenced by contributions.  So it was a distrust of money in politics, not the distinctiveness of the judicial office, that was decisive.  Moreover, although popular concerns about the corrupting influence of contributions might lead one to expect popular support for campaign finance reform, poll data revealed little support for the public financing of judicial elections.

Although respondents disapprove of judicial fund-raising, their view of other types of campaign activity, such as presenting one’s policy views and attacking one’s political opponent, was decidedly more positive.  Gibson’s poll data showed that policy statements by candidates for the bench were not viewed as rendering a judge incapable of fair and impartial decisions on the bench and, in fact, had no impact whatsoever on the legitimacy of the state supreme court. This approval of policy talk by candidates may reflect a recognition that voters need such information if they are to assess how candidates for judicial office will perform on the bench. It may also be that harsh attack ads have little effect on the institutional legitimacy of the courts, because experience with such ads has led to acceptance of them.   Ultimately, whatever negative effect may be produced by exposure to disagreeable ads is outweighed by the positive effect of being able to elect one’s judges.  Gibson thus concluded that judicial elections enhance support for the courts “because citizens learn (or remember) from elections that political institutions are accountable to them.”(110)

Gibson’s analysis, of course, focuses on only one criterion (legitimacy) that might be used in choosing a system of judicial selection.  One might also consider how a particular mode of selection affects the quality of those elevated to the bench, the sorts of decisions they render, the level of judicial independence they enjoy, and other factors as well.   Further, Gibson’s analysis focuses on process (how judges are chosen) rather than on substance (what decisions the judges reach).  It may well be that popular support for judges ultimately depends on whether the judges’ rulings are consistent with popular attitudes.  Gibson himself recognizes this, noting that survey respondents were far more attached to judicial independence from the executive branch or interest groups than they were to a judicial independence from majority sentiment.  Nonetheless, this careful study dispels a number of myths about popular attitudes toward the courts and is a major contribution to the debate over state judicial selection.  A number of states—Kansas, Missouri, North Carolina, and Tennessee—are currently reconsidering how they select their judges.  Gibson’s careful study can—and should–make a significant contribution to those deliberations.