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Does Electing Judges Undermine Judicial Legitimacy?

- March 24, 2008


The ideal court system in a democratic society is supposed to operate “outside of politics,” reaching decisions solely by carefully weighing the law and the evidence while leaving political considerations in the hands of the legislative and executive branches. The extent to which that ideal is approximated in the day-to-day operation of the courts is something else altogether. At the highest level of the American court system, this issue shows up regularly in political science journals in the form of debates about whether Supreme Court decisions largely reflect the justices’ own policy preferences or are based on their earnest efforts to apply the law to the facts at hand.

Nowhere do political considerations intrude more overtly into the judicial process than in the practice of electing state court judges. A question naturally arises, then, about whether judicial election campaigns shatter the idealistic images of justice as blind and of the courts as isolated from the hurly-burly of politics.

In the current issue of the American Political Science Review, James Gibson uses a clever research design to probe the impact of the popular election of judges on public support for the courts (abstract here). Three different features of election campaigns, Gibson argues, can undermine the perceived impartiality of the courts: campaign contributions, negative camapigning, and policy pronouncements by the candidates. To gauge these effects, Gibson embedded a series of experimental vignettes within a statewide survey in Kentucky. In some vignettes, the focal candidate, an incumbent, was portrayed as receiving campaign contributions from organizations that regularly try cases before his court; in others, the judge was portrayed as declining such contributions, and similar manipulations were used to capture the effects of negative campaigning and policy pronouncements. The results of these survey-based experiments indicated that in these vignettes, campaign contributions and negative campaigning both produced significant declines in perceptions of the courts as fair and impartial; the issuance of policy pronouncements, however, had no such effect.

These results led Gibson to conclude that:

bq. …when candidates for public office receive campaign contributions from those with direct business interests before the institution, many (if not most) citizens perceive policy making as biased and partial and the policy-making institution as illegitimate. Similarly, the use of attack ads causes many to question instititutional legitimacy. Just as certain are my conclusions that policy pronouncements by judicial candidates cause little harm to courts …

bq. Those concerned about threats to the legitimacy of elected state courts would do well to turn their attention away from substantive policy pronouncements and focus instead on the corrosive effects of politicized campaigning, and especially campaign contributioins from those having business before the bench.