response by 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 review is drawn from remarks prepared for that panel
Beyond Electing Judges
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.
Bonneau, Chris W., and Melinda Gann Hall. 2009. In Defense of Judicial Elections. New York: Routledge.
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.
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.