Reviewed by Melinda Gann Hall, Professor of Political Science, Michigan State University.
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.
James L. Gibson’s Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy is a perfect blend of theoretically driven empirical political science scholarship and practical politics. In this pathbreaking volume, Gibson effectively sets the standard for theoretical and methodological rigor in scientific studies of judicial legitimacy. On the practical side, Gibson’s penetrating analysis goes straight to the heart of the controversy over electing judges. In convincing terms, Gibson disproves the conventional wisdom of how Americans perceive judges, courts, and the judicial selection process while bringing a new level of conceptual clarity to the study of state judicial legitimacy. Electing Judges rests on carefully delineated assumptions that draw a sharp distinction between normative and empirical theory while building significantly on the concepts of expectancy and positivity bias. In empirical design, interpretation of complicated results, and theoretical craftsmanship, Gibson’s latest work is masterful.
Specifically, Gibson utilizes a representative three-wave panel survey in Kentucky and a national survey to explore two avenues of inquiry. First, Gibson assesses the impact of campaign activities in judicial elections on the legitimacy of state courts (i.e., individual perceptions of fairness and impartiality of judges and their decisions). Second, Gibson evaluates the nature and sources of diffuse support (i.e., institutional loyalty).
Using hypothetical vignettes imbedded in the surveys and actual ads from the 2006 Kentucky Supreme Court elections, Gibson analyzes three distinct aspects of campaigning: 1) the use of attack ads, 2) the announcement of policy positions, including promises to prejudge certain issues, and 3) the acceptance of campaign contributions. He also draws comparisons between the Kentucky Supreme Court and Kentucky Senate.
Through a meticulous analysis of the various samples and theoretically selected subsets of respondents, including respondents in election versus appointment states and respondents with knowledge of the courts versus those without, Gibson refutes two central assumptions dominating the judicial selection debate and extant work on judicial legitimacy: 1) that citizens uniformly value judicial independence over accountability and 2) that citizens perceive electioneering by judicial candidates unfavorably to the detriment of judicial legitimacy. [*474]
Electing Judges also provides an extensive body of evidence that collectively paints a fascinating though complex picture of state citizenries and their perceptions of judges and courts. Among the most intriguing results is the fact that the Kentucky Supreme Court is not obscure to its citizens, whose loyalty toward this institution is shaped by the same types of forces affecting support for the United States Supreme Court. Also significant are the marked differences in responses to some aspects of electioneering between respondents in states utilizing elections and states using appointment processes to staff state courts. But foremost among the contributions of this work is the finding that electing judges is a strongly legitimizing force that eclipses any harmful effects of campaigning, including those stemming from campaign contributions. The significance of this cannot be overstated. Gibson essentially has shaken the bedrock of much of the claims from the scholarly and advocacy communities about judicial campaign politics.
Notably, Electing Judges does not present the somewhat familiar disjunction in findings between experimental (field or laboratory based) and other types of empirical analysis (see, e.g., Barabas and Jerit 2010). Gibson’s principal results are consistent with aggregate-level studies testing the voter disaffection hypothesis in state supreme court elections. These studies use ballot roll-off as an observable behavioral manifestation of any cynicism and alienation brought about by negativity and other aspects of aggressive campaigns, and show that neither negativity nor campaign politics produces deleterious effects consistent with the disaffection hypothesis. Attack advertising enhances rather than reduces citizen participation (Hall and Bonneau 2012) and intense electoral politics in the form of tight margins, big spending, and quality challengers mobilize rather than demobilize voters (e.g., Baum and Klein 2007; Hall 2007, Hall and Bonneau 2008).
The central findings of Electing Judges also are immune to traditional concerns about the external validity of experimental designs. Generally, experiments raise questions about real-world applications, including questions about whether brief events like campaigns, which occur within a complicated political context, can have a direct impact, for what duration, and with what consequences. In Electing Judges, the post-election survey conducted several months after the 2006 elections for the Kentucky Supreme Court increases confidence about impact and duration. But particularly compelling is the fact that political scientists deem as axiomatic the principle that elections are powerful agents of political legitimacy. Thus, Gibson’s key finding about the strongly legitimizing impact of electing judges is consistent with one of the most fundamental precepts of political science.
The lessons of Electing Judges will be revelatory to all scholars interested in judicial legitimacy and the politics of state courts but will be acutely so to the legal academy, anti-elections advocacy groups, and political scientists premising their arguments and conclusions on normative theories of the judiciary. In fact, the very foundation of much of the argument commonly used to criticize the [*475] practice of electing judges is undermined by this work. Nonetheless, Gibson remains agnostic in the normative debate about how best to select and retain judges.
If there are limits to this excellent book, it is only a minor point related to framing: Electing Judges seems to accept the bold claims typically made about the transformative effects of Republican Party of Minnesota v. White (2002). In fact, scholars know remarkably little about judicial campaigns of the past, despite defeat rates in state supreme court elections that met or exceeded defeat rates for other important offices at least since the 1940s (e.g., Dubois 1980; Hall 2001; Kritzer 2011). Even so, Schotland (1985, p.78) described judicial elections in the 1970s and early 1980s as becoming “noisier, nastier, and costlier,” an iconic characterization that became the battle cry for judicial reformers, especially the critics of partisan elections. Brandenburg and Schotland (2008, p.1236) further observed that “[a]t least back into the 1980s, ads run in judicial campaigns have been so disturbing that they are presented as horror cases when legislators and others consider changes in judicial selection methods.” Thus, while White altered the rules of campaign engagement in some states (i.e., the nine states with announce clauses at the time of White), caution is advisable in inferring whether any trends in campaign politics are directly associated with White in partisan elections and those nonpartisan election states that never had announce clauses in the first place. But one of the most impressive aspects of this landmark volume is that Gibson inspires us to want to know more about a subject that has received scant scholarly attention.
In sum, Electing Judges is the most complete and compelling depiction of state judicial legitimacy ever published. This study also is a template for how to conduct methodologically rigorous and theoretically directed political science research. For anyone interested in the fascinating topics of judicial legitimacy, judicial selection, survey experiments, or bridging the gap between science and politics, Electing Judges cannot be missed. Indeed, this superbly crafted and thought-provoking work should be the cornerstone of any serious discussion of institutional reform.
Barabas, Jason and Jennifer Jerit. 2010. “Are Survey Experiments Externally Valid?” American Political Science Review 104 (May): 226-242.
Baum, Lawrence and David Klein. 2007. “Voter Responses to High-Visibility Judicial Campaigns.” In Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, Matthew Streb, ed. New York: New York University Press.
Brandenburg, Bert and Roy A. Schotland. 2008. “Justice in Peril: the Endangered Balance Between Impartial Courts and Judicial Election Campaigns.” Georgetown Journal of Legal Ethics 21 (Fall): 1229-1258.
Dubois, Philip L. 1980. From Ballot to Bench: Judicial Elections and the Quest for Accountability. Austin, TX: University of Texas Press.[*476]
Hall, Melinda Gann. 2001. “State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform.” American Political Science Review 95 (June): 315-330.
Hall, Melinda Gann. 2007. “Voting in State Supreme Court Elections: Competition and Context as Democratic Incentives.” Journal of Politics 69 (November): 1147-1159.
Hall, Melinda Gann and Chris W. Bonneau. 2008. “Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Elections.” American Journal of Political Science 52 (July): 457-470.
Hall, Melinda Gann and Chris W. Bonneau. 2012. “Attack Advertising, the White Decision, and Voter Participation in State Supreme Court Elections.” Political Research Quarterly: Online First January 20.
Kritzer, Herbert M. 2011. “Competitiveness in State Supreme Court Elections, 1946-2009.” Journal of Empirical Legal Studies 8: 237-259.
Schotland, Roy A. 1985. “Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American Democracy?” Journal of Law & Politics 2: 57-167.CASE REFERENCE:
Republican Party of Minnesota v. White. 2002. 536 U.S. 765.
Copyright 2012 by the Author, Melinda Gann Hall.