BRIGHT IDEAS: Political Scientists Chris W. Bonneau and Melinda Gann Hall on the Judicial Elections Controversy

As I noted in a post on Monday, controversy continues to surround the use of judicial elections in the selection of judges at the state level. Judicial reform advocates seek to abolish judicial elections in an attempt to preserve judicial independence and judicial impartiality. As I noted in Monday’s post, political scientists Chris W. Bonneau (University of Pittsburgh) and Melinda Gann Hall (Michigan State University) have thrown empirical grenades at these arguments in their new book, In Defense of Judicial Elections, which empirically assesses and debunks many of the reformers’ arguments. Professors Bonneau and Hall, who are experts in the areas of judicial selection, state politics, and judicial politics more generally, were kind enough to answer some of my questions about their book, the judicial elections controversy, and judicial selection in general.

For those who are interested in judicial elections, judicial selection, and law and courts more generally, Bonneau and Hall’s book is a must-read! Before you sign on to the judicial reform movement, you must come to terms with the forceful empirical evidence and arguments put forth by Bonneau and Hall. The interview below is a bit long, but it is definitely worth the read!

1.  Your research focuses on the selection of state supreme court judges, for which there are four different selection systems currently used: partisan judicial elections, nonpartisan judicial elections, merit selection with retention elections (the Missouri Plan), and appointment (akin to the appointment process for federal judges). Could you briefly characterize the controversy surrounding judicial elections versus the other systems?

BONNEAU:  The controversy comes down to whether one thinks voters should have a say in who sits on their courts (partisan and nonpartisan elections) and those who think this power should be vested in the hands of elites (appointment and retention).  From our perspective, we ask, given that states elect judges, do voters know what they are doing when they vote?  Are there institutional mechanisms that can assist voters?

HALL:  The basic claim about partisan and nonpartisan elections is that electioneering and other forms of electoral politics have unacceptably deleterious consequences for the American bench, including diminishing the public trust and deterring the most qualified candidates from seeking office. Reform advocates also describe voters as disinterested and uninformed, and incumbents as at the mercy of special interests and other financial high-rollers when seeking reelection.

From our perspective, these assertions are testable hypotheses that have proven to be unsubstantiated or incorrect.

2.  Your research is empirical—you analyze data from state supreme court elections to test claims put forth by judicial reform advocates (i.e., opponents to judicial elections). Judicial reform advocates have typically relied on normative arguments related to judicial independence and the need for judicial impartiality. Are these (and other) arguments grounded in reality?

BONNEAU: Based on all the evidence to date, the answer is no.  It is not only our work that highlights this, but also that of people like Jim Gibson and Eric Posner and his colleagues.  So, for example, one of the claims made by reformers is that voters don’t know what they are doing.  We find that, other thing being equal, voters are able to distinguish between challengers with prior judicial experience (“quality” challengers) and those who have no such experience.  That is, challengers to incumbents who have prior experience perform better, on average, than those that do not.  Another example:  reformers argue that nobody participates in these elections.  We find that voter participation is quite high, given a competitive election.  When voters are given a meaningful choice, they participate.  One final example:  reformers argue that these elections are exacting a toll on the legitimacy of the court system.  In a series of studies, Jim Gibson has shown that is just not true.

HALL:  This is an excellent question that goes directly to the disjuncture between political scientists and other scholars and practitioners concerned with judicial reform. The reform community, based almost entirely in the legal community, readily accepts normative accounts of judging as entirely apolitical and also assumes that any lifting of the purple curtain will attenuate judicial legitimacy. Similarly, the reform community casts the selection process simply as choosing competent technicians and has the tendency to rely on a normative ideal when evaluating the success or failure of judicial elections.

These normative assumptions are contradicted by modern social science. In fact, judges often have significant discretion and rely on their own political preferences to make decisions. Also, voters have participated in partisan judicial elections for decades without any observable adverse consequences and consistently have shown an unwillingness to relinquish their power over the selection process to political elites. Finally, an apolitical selection process is fiction, just as judges are not mere technocrats. In fact, regardless of who chooses judges, these actors seek to forward their own agendas by placing like-minded people on the bench. The federal judicial appointment process illustrates this point well. Finally, when compared to a normative ideal, all American elections fail. State supreme court elections perform as well or better than elections to other major offices in the United States.

3.  Why is electing judges unique to the United States and a small handful of other nations?

HALL:  The answer is simple. Very few nations in the world manifest such a distinct confluence of institutional arrangements: constitutional democracy, separation of powers with checks and balances, federalism, judicial review, and common law. Judges who act within this unusual configuration have extraordinary power and discretion that judges in other nations simply do not share.

Critical among these is federalism, which guarantees fundamental rights and freedoms at the national level while promoting “laboratories of democracy” in the states. Given the carefully engineered nexus between state governments and citizen preferences at the local level, and the stringent guarantees of civil rights and liberties at the national level, electing judges is a mechanism for insulating state judiciaries from legislative and executive encroachment while giving citizens a voice in the exercise of judicial power.

4.  When comparing partisan and nonpartisan elections, judicial reform advocates would argue that nonpartisan elections are the lesser of two evils since judicial candidates are not explicitly embracing a partisan label. How do you respond to that argument?

BONNEAU:  In many ways, nonpartisan elections are the worst of all worlds.  Political scientists have known (and demonstrated) for years that the most important cue for voters is the party identification of the candidate.  So, why would we remove that from the ballot?  Do people seriously think that there are no differences between Republican judges and Democratic judges?  Of course there are!  Judicial selection—no matter how it is done—is not simply about the quality of the candidate.  We can see this clearly in the selection of U.S. Supreme Court Justices.  Why did Justice Alito get so many “no” votes?  It surely wasn’t about his qualifications to serve or his intellectual acumen.  It was because some people thought he was too conservative.  The same can be said for Justice Sotomayor:  she got “no” votes because some people thought she was too liberal.  There is nothing wrong with this.  So why would we not let voters have this information when selecting their state supreme court justices?  It just doesn’t make any sense.

HALL:  Nonpartisan elections are the worst form of electing judges. By removing partisan labels from ballots, states open judicial elections to the most negative aspects of campaigns while reducing voter turnout and impairing informed choices.

My latest research (“Attacking Judges”) illustrates this point well. Attack ads have no impact on the electoral fortunes of state supreme court incumbents in partisan elections but have highly negative consequences in nonpartisan elections. Without partisan labels, campaigns matter more, including caustic campaigns designed to oust judges from office.

Essentially, partisanship in American elections is a powerful organizing force that insulates incumbents from some of the more negative aspects of campaigns and provides an excellent basis upon which to vote. In effect, partisanship allows citizens to vote as though they are fully informed.

The counterclaim about judicial elections is that judges are apolitical actors who do not fall neatly into the political party paradigm. But empirical research shows otherwise. Partisanship is an excellent predictor of judicial choice in state supreme courts and thus is a useful heuristic for voters.

5.   How do judicial reform advocates typically respond to your empirical findings?

HALL:  Legal scholars are beginning to take empirical studies (including our book) seriously, although the differences in methods of analysis and theoretical perspectives that persist between the legal academy and political scientists impair the conversation.

But for the most ardent advocates against elections, evidence is irrelevant. We must remember that fundamentally the judicial selection controversy is not an abstract scholarly debate about how best to select judges but rather is a highly charged political battle over who controls access to the bench and monitors judicial performance. Thus, our book has received considerable praise in social science circles (and, in fact, has been published in various forms in the most highly regarded journals of the discipline) but has been sharply attacked by those actively engaged in the campaign to end judicial elections. An outstanding example is Brandenburg and Caufield’s treatment of our book in Judicature. While there certainly are valid criticisms of our book and other empirical studies of judicial elections, those listed by Brandenburg and Caufield, including charges of methodological incompetence, are incorrect or unconvincing.

Along these lines, we should realize that the legal community has a vested interest in supporting plans that give lawyers a central role in the process. In fact, the ABA is one of the largest and most powerful interest groups actively seeking to end the practice of electing judges.  Similarly, organizations that were founded to forward a particular political agenda are not going to shift gears because of any evidence that contradicts their goals and livelihoods.

6.  Justice Sandra Day O’Connor is perhaps the most high-profile advocate of eradicating judicial elections. She is in favor of the merit selection system with retention elections. In most merit systems, a nonpartisan commission sets the agenda by interviewing potential candidates and then recommending individuals to the governor. Judicial reform advocates would argue that this process is much less political than judicial elections and serves to protect judicial impartiality. These arguments carry great normative appeal. Do you agree or disagree with these arguments?

BONNEAU:  Completely disagree.  “Merit” selection simply moves the politics behind closed doors.  Moreover, retention elections are completely ineffective at removing rogue judges.  At the state supreme court level, only 5 judges (about 1%) have been removed since 1990.  The thought that this produces better quality judges is based on a misguided conceptualization of quality.  There is not one qualified person for either position; rather, there are several qualified people, each “qualified” in a slightly different way.  So, how do we choose among qualified people?  I say, let the people decide; reformers say let the elites decide.  But to pretend that politics isn’t involved is more than a bit naïve.

HALL:  The primary underlying assumptions in Justice O’Connor’s position are: 1) that politics has nothing to do with judging and 2) that appointment plans can effectively remove partisanship and other forms of politics from the selection process. One need only look to the federal courts to find contradictory evidence. The Missouri Plan hardly removes politics but instead relocates control over the state court bench from the electorate to a small elite.

Tennessee is an excellent example of some of the most overt problems with the Missouri Plan. In 1994, Tennessee switched from partisan elections to the Missouri Plan but now is engaging in substantial reform to try to remove the most negative consequences of this choice. Of particular concern was that the process quickly became an elitist, closed-door process dominated by the bar.

There simply is no apolitical way to choose judges. The issue really is about what kind of politics one prefers. The advocacy community speaks of legitimacy but does not recognize the incredible irony in asking citizens to relinquish their role in the selection process to a select handful of political appointees and politicians. On this matter, we should remember that elections are perhaps the most powerful legitimacy conferring institutions in the world.

However, much more troubling than Justice O’Connor’s proposal is the ABA Plan. The ABA now advocates that all forms of judicial elections be replaced with a gubernatorial appointment scheme devoid of legislative confirmation, which the ABA also considers so wracked with politics as to threaten judicial legitimacy. If adopted, the ABA Plan would be least democratic system operating in the United States.

7.   Does the merit selection system produce more qualified judges than judicial elections?

BONNEAU:  This is something our work has not covered.  However, Eric Posner and his colleagues have a series of papers examining just this topic.  And the answer thus far is a resounding no.  He recently summarized his work HERE.  Undoubtedly, there are anecdotes about bad judges who have ascended to the bench via election.  And the reformers do a great job making everyone hear about those anecdotes.  But bad judges make it to the bench via appointment too—witness the issues the New Hampshire Supreme Court had a few years ago.  And, as one of my colleagues is fond of saying, the plural of anecdote is not data.  Sure, there are individual cases, but there is no systematic evidence that you get better judges using “merit” selection.

HALL:  Extant empirical literature says no. Not only are judges quite similar in objective qualifications across election systems but their job performance does not vary either. This is a critical point because it goes to the very heart of the case for ending judicial elections. Judicial reform advocates consistently have claimed that we would get better judges by not subjecting candidates to the electoral process. This promise has not been fulfilled.

8.   Do the different selection systems in the states result in significantly different types of judging in states courts of last resort? In other words, are judges who are elected more political and ideological in their decision making compared to judges who are selected via the merit system or appointment?

HALL:  This is a complex question for which a simple answer is not possible. Basically, empirical political scientists view all judicial decisionmaking as intrinsically political and ideological, regardless of selection method. Essentially, judges tend to reflect the preferences of those who choose them and these preferences in turn affect judges’ discretionary choices. Moreover, judges are constrained in the extent to which they are free to vote their preferences by many factors, including state and federal law, their own ambitions, and concerns with constituency. Judges in appointment systems with lifetime tenure have more freedom to cast votes consistently with their own preferences, judges in appointment systems with fixed terms renewable by the executive or legislative branch defer to the other branches and thus exercise judicial review less effectively, and judges in elective systems defer to their constituencies on highly visible issues.

One fundamental premise of the judicial reform movement is that any form of constituency pressure is negative because public preferences undermine the rule of law. However, the opposite scenario is just as likely. We simply cannot assume that public preferences contradict the rule of law or that a judge’s unconstrained preferences are any less dangerous (or consistent with the rule of law) than the threat of majority tyranny. I address this complicated issue in my paper, “On the Cataclysm of Electing Judges.”

9.   What has been the effect of the U.S. Supreme Court’s important decision, Republican Party of Minnesota v. White (2002), which ruled that candidates for judgeships are allowed to state their views on legal matters that could possibly come before the courts?

BONNEAU:  The short answer is that there have been no adverse effects.  We have a paper we are currently working on with Matt Streb examining this very question.  All of the doomsday scenarios predicted by the reformers (uber-competitive, high-spending elections) have simply not occurred.  The vast majority of changes happened well before the White case.

HALL:  Remarkably, White seems not to have had much of an impact on the conduct of state supreme court elections. While some feared that White would reduce judicial elections to rancorous free-for-alls in which qualified incumbents would be imperiled by various forms of gutter politics, these effects have not been realized. The paper I just referenced (“On the Cataclysm”) provides some preliminary evidence on this topic. Generally, elections have become less competitive since White.

Also, our latest work (“Going Negative”) shows that attack ads (the harshest form of political advertising) do not inhibit citizen participation in state supreme court elections. Of course, neither the ABA nor any other group has expressed the concern that nasty campaigns will inhibit the propensity to vote. However, the fundamental premise of their case is that campaigning negates positive citizen attitudes, including trust and confidence. To political scientists, the most pronounced symptom of such distrust and disillusionment is voter disaffection.

10.  Have either of you consulted with or advised state governments as they mull over altering their selection systems for state court judges?

BONNEAU:  We have done some of this.  In September, I went down to West Virginia to speak in front of their Independent Commission on Judicial Reform, with Sandra Day O’Connor serving as the Honorary Chair.  One of the tasks of the commission was to decide whether to recommend keeping the status quo (partisan elections) or moving to nonpartisan or retention elections.  They also examined whether or not to have publicly financed elections and to create an intermediate appellate court.  They decided to keep partisan elections, while deciding to experiment with public financing for one election in 2012.  Also, they recommended creating an intermediate appellate court, with those judges not selection by partisan elections.  We’ll have to see how things develop there, but, from my perspective, the fact that they chose to keep partisan elections means that they were, minimally, at least open to the evidence that these elections work.

11.  What is your view of the Supreme Court’s recent Citizens United decision? What effect do you think it will have on state supreme court elections?

BONNEAU:  This may be the most over-hyped decision I can remember.  I guess I just don’t see what the big deal is:  so it allows corporations to explicitly endorse candidates with their own money.  Okay is this going to change the conduct of elections?  Unlikely, since the line between “issue” ads and “endorsements” is hardly a bright-line distinction.  Let’s look at the 2004 West Virginia race by way of example.  Don Blankenship, CEO of Massey Energy, created a PAC called And For the Sake of the Kids to defeat the incumbent Warren McGraw.  Blankenship gave over $3 million to this PAC, who ran ads against McGraw.  How would this have changed if the race occurred after Ctitizens United? I guess it is hard for me to imagine that things will be any different.  Of course, this is an empirical question and we will know soon enough whether my conjecture is correct.

HALL:  Chris and I very much disagree on this issue. In my view, Citizens United is a setback for the fair conduct of elections in the United States. From my perspective, one can support the democratic process while also recognizing the need for meaningful regulations to keep the process fair. Fortunately, Congress is working to alleviate any problems likely to arise with Citizens United, including much needed sunshine laws to require full disclosure in campaign advertising.

Of course, Citizens United was not about judicial elections. But unfortunately this case has become another tool for condemning them, reasonable regulations to alleviate any issues stemming from this decision notwithstanding.

12.  While your research is empirical, the title of your book, In Defense of Judicial Elections, might lead some readers to think you favor judicial elections over the other selection systems. Do you make any normative arguments in your book based on the empirical work?

BONNEAU:  We do.  It is important to note that our data, and thus the conclusions based on our data, are limited to state supreme courts.  Most basically, we conclude that partisan elections are a good thing and states should not be running away from them.  It is important to note that, unlike groups such as the American Judicature Society, whose raison d’etre is to eliminate judicial elections, we came to our normative conclusion about the desirability of elections (specifically, partisan elections) based on the empirical results of our studies.  Going into this, we were agnostic about whether or not elections were effective or a good thing.  But our results, coupled with those of other scholars mentioned above, lead to a clear conclusion that not only are elections not bad, they actually are the best way to select judges.  That does not mean that they are not unproblematic; they simply are the least problematic of the alternatives.

HALL:  Yes.  Actually this was the most important point of the book. Our work places the body of empirical scholarship on state supreme court elections within a normative framework. We do this because we wish to elevate the discussion of judicial selection beyond the hyperbolic rhetoric that heretofore has dominated this subject and also because the body of evidence overwhelmingly supports the case for electing judges on partisan ballots. If we accept that judges are political actors who have an important impact on public policy, and that partisan elections are an efficacious means for citizens to have a voice in government, then the case for judicial elections is convincing.

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4 Responses

  1. Frank Pasquale says:

    Hall stated that “Attack ads have no impact on the electoral fortunes of state supreme court incumbents in partisan elections.” Why do those who oppose the incumbents purchase the ads? Has the marketing industry conned them into thinking ads have an effect?

  2. Melinda Gann Hall says:

    Re Mr. Pasquale: Probably for the same reasons that challengers spend extraordinary amounts of money in many American elections when incumbents have an advantage that is hard to overcome under most circumstances. Challengers take chances and may actually believe that attack ads are effective, either by their own judgment or after being convinced of this by marketing agents. But in partisan elections, attack ads are just as likely to backfire against the sponsor. Scholars do not yet understand this process very well so it’s hard to say why this happens, but it clearly does.

  3. Jim Byrne says:

    In 1940 (when the so-called non-partisan plan was adopted in Missouri) the Missouri Bar Association was a benevolent society. It was seperate and distinct from Missouri’s Judiciary. Just four years after adoption on “The Plan”, the Missouri Supreme Court, via its newly acquired power to create rules for practice and procedure, made the Missouri Bar Association a Committee of the Missouri Supreme Court. Now, instead of the Court only having one vote, they had 4 of the 7 votes. –This change in structure of the non-partisan plan took place without the knowledge or concurrence of the votes (who had approved a completely different plan 4 years earlier).

    In addition, only two judges have ever been removed via retention election. The first was removed, not for being a bad judge, but because he was supported by Boss Tom Pendergast. The second, Judge John Hutcherson, lost retention after three Bar Associations (including the statewide Missouri Bar Association) gave him terrible reviews. –Just 4 years after losing retention, John Hutcherson applied with the Missouri Supreme Court to be a “Senior Judge”. The Missouri Supreme Court accepted John Hutcherson’s application and placed him on the bench in 9 other counties. Hutcherson even boasted about what a good deal it was for Missouri, because he was hearing so many cases at a discounted rate.

    Don’t even get me started on the “Show” that was created to deal with “Bad Judges”. Even the Bar Insiders refer to it as CRUD.

  4. Jim Byrne says:

    In addition, only two judges have ever been removed via retention election. –In Missouri