by Chris W. Bonneau and Melinda Gann Hall. New York: Routledge, 2009. 200pp. Hardback. $125.00. ISBN: 9780415991322. Paper. $30.95. ISBN: 9780415991339.
Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.
Two central arguments generally advanced by opponents of state judicial elections are judicial independence and lack of citizens’ participation. These critics – some of whom are scholars, judges, interest groups, and professional organizations - maintain that unlike executives or legislators, judges do not render political judgments and ought to be above partisan politics. They also contend that partisanship in judicial elections drives voters away. To be certain, there are supporters of state judicial elections, even if few, who argue that judges are not divorced from political judgments and must be held accountable by voters like other public officials. Chris W. Bonneau and Melinda Gann Hall, authors of IN DEFENSE OF JUDICIAL ELECTIONS, clearly belong to the latter camp. In IN DEFENSE, Bonneau and Hall boldly challenge the primary claims of judicial elections opponents by identifying some of these critics’ arguments, converting them into testable hypotheses, and systematically testing these hypotheses. Employing econometric techniques and using data from state supreme court elections from 1990 through 2004, the authors subject many of the critics’ major claims to empirical analyses and assessed their accuracies.
In Chapter 1, Bonneau and Hall trace the history of judicial election controversy. They establish that appointment of state judges was common until about 1830, but judicial elections became popular post then primarily for three reasons. One, judges were increasingly overturning laws enacted by legislatures and were perceived as making some of the states’ most important political decisions. Thus, arguments were made that judges should be elected, similarly as legislators. Two, the legal profession thought judicial elections will enable the judiciary to claim its own separate constituency independent of the legislature. Three, it was considered easier to remove an incompetent and arrogant elected judge than an appointed one. Bonneau and Hall surmise that, over the course of time, judicial election critics (whom the authors also alternatively referred to as judicial reform advocates) have maintained the central argument regarding the inappropriateness of treating judging as political legislating. In addition, these opponents continue to attack partisan judicial elections, thus resulting in several states in recent years either instituting nonpartisan elections or adopting the Missouri Plan (aka “merit selection”) – which generally encompasses retention election for judges chosen under the plan.
Later in this chapter, the authors note that only seven out of thirty-eight states that utilize judicial elections actually use [*850] partisan elections. In addition, there is considerable variation among the states on election conduct, participating constituencies, and terms of office. Bonneau and Hall further observe that during the past two decades, state supreme court elections have attracted stronger challengers, resulted in narrower margins of victory, and devolved into expensive campaigns. As a result, influential organizations such as the American Bar Association and the National Center for State Courts have called for their total elimination. Towards the end of the chapter, the authors outline and summarize the remaining five chapters. They conclude the first chapter by readily acknowledging their rationales for focusing on state supreme courts and explaining their study limitations.
Bonneau and Hall address two major issues in Chapter 2: Extent of voters’ participation in judicial elections; and how hard-fought, expensive campaigns alienate the electorate and perhaps diminish their involvement. They analyze 264 state supreme court elections held between 1990 and 2004 in 18 states using partisan or nonpartisan elections, as well as descriptive data on 210 retention elections during the same period. Thus, they contrast overall voters’ participation in these three different types of judicial elections. Instead of using voter turnout numbers during normal election cycles, they utilize the concept of ballot roll-off - “the percentage of the electorate casting votes for the major office on the ballot who do not vote in each supreme court race” (p.23). Major office is defined as “the presidential, gubernatorial, or U.S. senatorial contest attracting the most voters in each election” (p.23). They then use a Heckman two-stage procedure to estimate their model of ballot roll-off. For stage one, the dependent variable is whether a state supreme court election was contested while the independent variables reflect factors such as incumbent’s vulnerability, attractiveness of the seat, political and institutional context, and candidate pool. One of those political and institutional factors tested is the impact of the U.S. Supreme Court’s decision in REPUBLICAN PARTY OF MINNESOTA v. WHITE (2002), wherein the Court effectively ruled that judicial candidates are permitted to express their political views on matters likely to come before their courts. For the stage two model, the authors employ ballot roll-off as the dependent variable, some of the independent variables utilized in stage one, as well as some temporal variables to control the temporal effects of the model.
Among other findings in this chapter, Bonneau and Hall establish that the WHITE decision has not had the effect of turning votes away from judicial elections as reformers have speculated; experienced incumbents are less likely to be challenged than candidates for open seats; incumbents initially appointed and facing voters for the first time are likely to draw challengers as open seat contestants; and expensive campaigns increased voter participation whether measured as total spending or spending per voter, other things considered. They conclude this chapter by reiterating that, unlike some scholars’ assertions that citizens’ lower confidence in courts can be attributed to vigorous campaign activity, “the more expensive and contentious the race, especially in statewide partisan elections, the more [*851] likely it is that voters will participate” (p.47).
The focus of Chapter 3 is on explaining campaign spending. Adopting the two-stage Heckman model again, they test the conditions under which elections draw challengers and those conditions that facilitate spending if elections are contested. For the stage one model here, they rely on the same dependent and independent variables utilized in Chapter 2. For the stage two model, the dependent variable is the total amount of spending by all candidates per race, measured as the natural log of spending, while the independent variables again incorporate factors such as incumbent’s electoral vulnerability, seat attractiveness, political and institutional context, and candidate pool. Here, Bonneau and Hall find that once a race draws challengers, the nature of the incumbency has no impact on the amount of money spent, ceteris paribus. Their results demonstrate that other things equal, partisan elections reduce campaign costs while nonpartisan elections increase campaign spending.
If the results presented in Chapters 2 and 3 are not sufficiently convincing to throw conventional wisdom on its head, Bonneau and Hall provide additional empirical evidence in Chapter 4 to correct what they consider the erroneous assumptions of judicial reformists. In this chapter, the authors question whether challengers’ quality matter to incumbents’ performances. In other words, are voters able to evaluate the quality of challengers and treat the challengers as less suitable options to incumbents? They also question whether money dictates electoral outcomes. With the first question, the authors rationalize that if more experienced challengers relative to their less experienced counterparts pose serious challenges to incumbents, then the argument “that the electorate is incapable of responding to candidate stimuli beyond incumbency and that judicial elections inherently are an ineffective means for securing popular control over the bench” (p.71) falters. If the second major question raised in this chapter seems asked and answered in previous chapters, this is not the case. The focus on money’s influence in this chapter is on the role of special interests and other financial high rollers.
In the chapter, initially using the descriptive data mentioned above in which incumbents were seeking reelection and excluding open seat races, they evaluate how challengers and voters respond to incumbents. Using similar Heckman estimation techniques previously employed in previous chapters, Bonneau and Hall eliminate some independent variables related to open seat and post-WHITE effects and make other adjustments to reflect their given hypotheses. The results indicate that challengers are likely to jump into state supreme court races when they perceive a reasonable chance of winning, thus demonstrating that challengers are rational actors. Relatedly, the electorate, in the aggregate, would render support to an incumbent only after assessing whether challengers may or may not be qualified as suitable alternatives to the incumbent. The authors assert that this finding convincingly demonstrates the weakness of reform advocates who seemingly perceive voters as not being rational in their judicial selection. As for campaign spending, the results indicate that while money does matter, it is one [*852] of several important factors that determine an incumbent’s performance on election day. Other things being equal, an incumbent (who is not unpopular) who spends as much as a challenger will do quite well.
As for Chapter 5, the authors evaluate recent reforms to judicial selection processes in five states – North Carolina, Arkansas, Minnesota, New Mexico, and Wisconsin. They examine various changes each state has recently made to its judicial selection process. They conclude that, in the aggregate, the early results are mixed. They nonetheless admit that with those states that have instituted public financing, private contributions to election campaigns have dwindled, but total spending by candidates who opt for public financing has not diminished. Lastly in Chapter 6, Bonneau and Hall summarize the findings from earlier chapters and apply them to “debunk” what they consider the nine “popular myths” of the reform movement. Although the arguments here are reiterations of findings presented in earlier chapters, this is a very useful chapter because the authors forcefully present their viewpoints in an outline format that many readers will find convenient. Citing the Supreme Court as “prima facie” evidence, the authors gave the following closing statement: “Electoral independence does not guarantee impartiality or prudence in the exercise of judicial power” (p.138).
IN DEFENSE is another title in the Routledge series “Controversies in Electoral Democracy and Representation.” It is a valuable and excellent addition to the literature of state judicial elections; if only for one reason, it empirically demonstrates and strongly argues that opponents of judicial elections are erroneous in their underlying assumptions. At the very beginning of the book, the authors admit that although there is new material included, several portions of the book have been previously published or are forthcoming. Maybe because of the parceling of the individual chapters for separate publication, some readers might find the authors’ conclusions in each chapter as repetitive. However, I see these seeming repetitions as re-emphasizing the authors’ central premise on the efficaciousness of electing state supreme court judges. Moreover, such potential repetitions make each chapter very accessible to readers who might be interested in only particular chapters.
Bonneau and Hall are clearly not alone in empirically challenging the anecdotal evidence presented by judicial election critics. For instance, Gibson (2008) in his study of judicial legitimacy in the face of a judicial election found that “candidates for judicial office can engage in policy debates with their opponents without undermining the legitimacy of courts and judges” (p. 72). In addition, Gibson discovered that the corrosive effects of campaign contributions and attack ads slightly diminished the legitimacy of courts, but just as they do to that of the legislatures. But unlike Gibson’s research, whose findings might or might not be generalizable, or the U.S. Supreme Court’s decision in CAPERTON v. A.T. MASSEY COAL CO. (2009), wherein the Court did not address the specific issue of judicial election, Bonneau and Hall’s findings are generalizable and forthright. [*853]
IN DEFENSE is a well-written book and very accessible to both scholars and non-scholars. Except for a very slight error on page 23 when Montana is misidentified as Missouri, IN DEFENSE reads very fluidly. I found it difficult to put down once I began reading it. The authors, while forceful in their condemnations of assumptions behind judicial election opponents’ arguments, nevertheless acknowledge that elections are not the perfect panacea to some of the problems identified by judicial reform advocates. They conclude that these problems are not limited to judicial elections alone and that citizens are rightly concerned about all elections for political offices in the United States. Bonneau and Hall posit that there are other alternative solutions better suited for resolving these issues. I agree and strongly recommend the book to every reader concerned about either judicial independence or judicial accountability.
Gibson, James L. 2008. “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New Style’ Judicial Campaigns.” AMERICAN POLITICAL SCIENCE REVIEW 102 (February): 59-75.
CAPERTON v. A.T. MASSEY COAL CO., 556 U.S. ___ (2009).
REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002).
© Copyright 2009 by the author, Salmon A. Shomade.