Gavel Grab

New Scholarship on Judicial Elections

A few new articles worthy of attention: in “The Irony of Judicial Elections,” as noted by Voir Dire, David Pozen writes in the upcoming Columbia Law Review that:

Judicial elections in the United States have undergone a dramatic transformation….a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the “new era,” as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience….As judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary’s distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary.

Two other upcoming articles examine the effect of the new politics of judicial elections on public confidence in the courts. In “Homegrown Institutional Legitimacy: Assessing Citizens’ Diffuse Support for Their State Courts,” Damon Cann & Jeff Yates at the University of Georgia argue in American Politics Research that:

Citizens’ views of their state courts diminish as they are exposed to “new style” state judicial election races….policy oriented campaigning and high information elections do suggest heightened judicial accountability, however such accountability is tempered by the likelihood that citizens will possibly come to perceive judges and courts as indistinguishable from their elected legislative and executive counterparts….the courts may find it increasingly difficult to weather the storm of unpopular decisions. Exacerbating this situation are the concerns of citizens over the potential quid pro quo scenarios caused by campaign contributors appearing in beneficiary’s courts. Our results indicate that citizens concerned over this possibility are especially lacking in good-will toward their state courts.

In “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns,” Professor James Gibson argues in the American Political Science Review that:

The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges….campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.

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