May 26, 2011

Wisconsin’s Supreme Court race this spring is likely to intensify the already heated national debate over judicial selection in the states. From the hyperbolic rhetoric in media reports, one would think that the very legitimacy of state courts is at stake when ignorant voters are allowed to decide whether judges should retain their jobs. The New York Times editorial board lamented last month: “Whoever ultimately gets the job, all of Wisconsin has lost. This nasty, highly politicized race is raising serious questions about the impartiality of the state’s highest court.”

Powerful opponents of judicial elections — which include the American Bar Association, Justice at Stake and the American Judicature Society, as well as former Supreme Court justice Sandra Day O’Connor — have spent countless hours and funds to eradicate elections. O’Connor even campaigned on behalf of a Nevada ballot measure that would have eliminated the state’s judicial elections system, appearing in television ads. Critics tend to cloak their activity in “good government” rhetoric, arguing that the election process erodes public confidence in the courts by injecting politics into the judicial process and threatens judicial independence as judges are dependent on the public to retain their jobs. But political scientists have been examining judicial elections for some time and have amassed considerable empirical evidence in this area. The data suggest:

l There is no evidence that elections cause voters to view judicial institutions as less legitimate. In 2008 and 2009, Washington University professor James Gibson, in a series of survey experiments, found that while particular campaign contributions can lead to legitimacy concerns, there are no such consequences when candidates engage in policy talk, negative ads or other ordinary incidents of a judicial race. Additionally, according to Gibson’s data, the net effects of elections are still positive in terms of public perception of the judiciary.

l There is no difference, other things being equal, in the quality of judges who emerge from elections as opposed to appointments. Law professors Stephen Choi, Mitu Gulati and Eric Posner recently found that appointed judges not only do not perform at a higher level than elected judges in terms of opinion quality and output but also that elected judges do not appear to be less independent than appointed judges. The authors were appropriately cautious in interpreting their findings, but any fair reading of their results suggests that elected judges are, at worst, equal to appointed judges in quality and independence.

l Campaign spending makes elections more competitive. As my research has shown, just as in elections more generally, the more money challengers spend trying to unseat an incumbent, the better they perform with the electorate. Campaign spending thus has positive effects in these elections. Moreover, stringent campaign finance limitations reduce the amounts a challenger can spend, thus making the election less competitive and increasing the incumbency advantage. Campaign spending is key to providing voters with a meaningful choice.

l There is no proof that elected judges are for sale. Critics of judicial elections frequently point to Caperton v. Massey as an example of how judges can be “bought.” This West Virginia case, in which a judge supported by the Massey coal company won election and then did not recuse himself regarding the company’s appeal of a $50 million verdict, includes several facts that are routinely ignored. A news release from the West Virginia Court of Appeals noted that Chief Justice Brent Benjamin — the judge who allegedly benefited from millions of dollars in campaign ads paid for by the chief executive of Massey Energy — voted against Massey Energy or its subsidiaries 81.6 percent of the time, including in the Caperton case. These votes “cost” Massey Energy approximately $317 million. In contrast, Massey “benefited” from Benjamin’s votes 18.4 percent of the time, for a total sum of about $53.5 million. So, was Benjamin’s vote “bought”? The numbers are unconvincing. More generally, there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.

Little has also been said about the biases in the systems with which critics would like to replace elections. No method is perfect. But, unlike the “merit” commission process most frequently offered as an alternative — in which judges are selected by the governor off a list formulated by political and legal elites and then retain their jobs simply by receiving a majority of “Yes” votes in an uncompetitive election — elections are at least transparent processes open to the public.

In the debate so far, many of the arguments have been based on rhetoric, not fact. It is important to remember that efforts to maximize judicial “independence” from the electorate can also maximize independence from the law and the Constitution. Without a mechanism for effectively holding judges accountable, judges are free to “go rogue” and make decisions based solely on their political views. Is that better than a campaign season every now and then?

Chris W. Bonneau is an associate professor of political science at the University of Pittsburgh and co-author, with Melinda Gan Hall, of the book “In Defense of Judicial Elections.”