Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh.
As part of the 2012 American Political Science Association Meeting, I organized (and was scheduled to Chair) an Authors-Meet-Critics Session on James Gibson’s latest book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy. Of course, that panel never took place due to the cancelation of the meeting. Prior to that cancellation, Paul Parker (the editor of LPBR) asked the participants if we were interested in writing up our remarks and publishing them in a mini-symposium on the book. I want to thank Paul for that opportunity, especially in light of the cancellation of APSA.
As Chair of the panel, my primary task was to provide a brief overview of Gibson’s data, methodology, and conclusions. The thoughts of the other participants (Melinda Gann Hall and Keith Bybee) follow mine, and then Jim Gibson concludes the symposium with a response to our comments.
The overarching research question of the book is: do judicial elections erode the legitimacy of courts. This relatively straightforward question is of enormous importance. There is an assumption in the literature (that has been adopted by reform groups and state legislatures) that elections are bad for the legitimacy of the court system. Thus, elections should be abolished, otherwise the very foundations of the judicial system are at stake. Moreover, despite the importance of the question, before Electing Judges we simply had no good data to answer it. This book is vintage Gibson: (1) he uncovers an interesting, important, and unanswered question; (2) devotes considerable intellectual care to designing a series of studies to answer it; and (3) presents his empirical results in an honest, careful, and accessible manner.
I think this project provided Jim with more obstacles than some of his other projects. First, as Jim admits in the introduction to the book, he is “not generally known for working on state courts” (p.ix). Indeed, “becoming acquainted with the literature and players in the field has been an interesting and occasionally challenging endeavour” (p.ix). On this front, Jim did an exceptional job overcoming the pitfalls associated with a lot of the research on state courts. In a perfect world, we would have longitudinal, nationwide data examining attitudes toward the legitimacy of state courts. But we don’t. And, as Jim points out in the book, where we do have survey data and where the questions asked are somewhat useful, the numbers of respondents in each state are quite small.
To get around this, Electing Judges is based on a series of surveys (and survey experiments) put in the field in Kentucky [*470] in 2006. While there are always issues of generalizability from a single-state study, given the state of the literature and a finite amount of time and funds, this choice seems like the right one to me. Kentucky is chosen because it has some history of competitive elections, but that history is not too long. That is, studying elections in, say, Minnesota would not be fruitful since that state has no history of hotly contested elections. Likewise, looking at Texas would also not be interesting since there have been hotly contested elections there for over two decades. Kentucky is somewhere in the middle, and, because of this, is a good choice. Would other states have been equally good choices? Sure. But that, in itself does not negate the appropriateness of the choice of Kentucky. Given more time and funding, it would have been nice to have a partisan election state included as well. But, again, when studying things like state courts, hard decisions have to be made. Finally, where possible, Gibson uses a nationwide survey he administered to confirm the results from Kentucky. So, to answer the question of what can we learn about judicial elections from one election cycle in one state? A hell of a lot more than we know to date. And that, to me, is the great contribution of Electing Judges.
Since many of you have not had the chance to read the book yet, I want to summarize the major findings, some of which are discussed in more detail by Hall and Bybee.
- Receiving campaign contributions leads to citizens perceiving policymaking as biased and the institution as illegitimate. However, this is true for state legislatures as well as state courts.
- Judicial candidates taking positions on policy issues cause little harm to the legitimacy of courts. Candidates can engage in policy debates with their opponents without undermining the legitimacy of courts.
- Attack ads also do not undermine legitimacy, as long as the attack is confined to policy disagreement. Ads that portray judges and judicial candidates as “ordinary politicians” are damaging to the legitimacy of courts.
- Explicit policy promises (distinguished from general positions on issues) are also damaging. Interestingly, the same is true for state legislatures.
- Attitudes toward the Kentucky Supreme Court are shaped by factors similar to the United States Supreme Court: broader commitments to democratic institutions and processes.
- Table 5.2 presents results from a question on Expectations of a Good Supreme Court Justice. This chart is fascinating. 72.9% expect a good justice to “protect people without power”; this is higher than the 71.8% who expect justices to “strictly follow the law.” Indeed, fully 46.5% believe a good justice should “represent the majority” of citizens in the state and 43.7% agree that a good justice should “give my ideology a voice.” This data points out a large chasm between how legal scholars and judicial reformers think a good judge should act and how citizens think a good judge should act. Given this, it is not surprising that many of the arguments leveled [*471] against judicial elections (contentious campaigns, policy promises, attack ads) turn out not to bother ordinary citizens all that much.
- In Chapter 6, Gibson makes use of a 3-wave panel survey, put in the field before, during, and after the 2006 election in Kentucky. This allows us to learn, for the first time, the degree to which campaign activity affects legitimacy. Building off Chapter 5 (where Gibson found that citizens vary significantly in their expectations of judges), he finds that the net effects of elections are positive in terms of legitimacy. That is, elections are legitimacy-conferring, not legitimacy-detracting. Of course, the rougher the campaign, the lower the legitimacy boost. However, campaigns do not create a legitimacy-deficit. This conclusion has also been found using data in Pennsylvania, so it does not appear to be limited simply to Kentucky.
First, it seems to me that the next step is to examine the link between legitimacy and compliance at the state level. Obviously, this is not an easy task, as one would need both cross-sectional and longitudinal data. And we would need a way to operationalize compliance in a reliable way. But the work on legitimacy leaves me wondering if legitimacy is simply useful because it is important for institutions to be legitimate, or if there is something more. Can we identify any tangible consequences to a lack of legitimacy? For example, in the context of state supreme courts, do incumbents have more of an advantage in courts with higher legitimacy? Do state legislatures attempt to override courts with higher legitimacy less? I think these are some questions that future research needs to address.
Second, Gibson notes that future studies “must pay considerably more attention to interstate differences and in particular to differences across states in the perceptions and expectations citizens hold of their judges” (p.55). I could not agree more. It is possible, for example, that courts in, say, Minnesota, would suffer a legitimacy-cost to rancorous campaigns since there is no history of them in the state. Voters may need to get acclimated to rough-and-tumble campaigns before they can have a legitimacy-conferring effect. Likewise, perhaps after 25 years of campaigns like this, voters are sick and tired of them and elections thus decrease legitimacy in states like Texas. At this point, these are all unanswered questions. Electing Judges gives us a framework for investigating these types of questions.
Third, are there any differences between state supreme courts and lower courts? Lower court races are even lower-salience and rarely involve competitive campaigns. Given that, do [*472] these sleepy elections also confer legitimacy? Or are they so noncompetitive that they are irrelevant to legitimacy? That is, I wonder if some measure of competitiveness is necessary for elections to have the legitimacy-conferring effect that Gibson finds. I suspect that is the case, just as it is for other offices.
My last thought pertains to the realm of applied politics: how do we get those involved in judicial reform to pay attention to work like this? This is something several of us have struggled with for years: how do we get people to pay attention and use our results to make sound policy judgments? This work has something important to say about the movement to end judicial elections. Ignoring the evidence Gibson presents would lead to politicians making poor policy choices.
I’ll close my remarks by simply quoting from my blurb that will appear on the back cover of the book: “James L. Gibson is an intellectual giant in the field of judicial politics and Electing Judges may be his more important contribution to date. This is a first-rate piece of scholarship that speaks directly to the central arguments in a highly contentious ongoing debate. For all interested in the judicial selection process, Gibson’s evidence is powerful and simply cannot be ignored.”
Copyright 2012 by the Author, Chris W. Bonneau