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Competing Narratives in a Judicial Retention Election: Feminism versus Judicial Independence

Published online by Cambridge University Press:  02 April 2024

Susan M. Olson  and
Christina Batjer
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Abstract

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Feminists' opposition to a state trial judge in a retention election provided an opportunity to explore important issues about legal consciousness and differences between negative and affirmative resistance. Three questions about legal consciousness and resistance are addressed: What effect does an encounter with an allegedly bad judge have on people's legal consciousness? Under what circumstances will people engage in negative or affirmative resistance against a legal encounter they perceive as unjust? What instrumental effects on institutional practices and what constitutive effects on legal consciousness can such resistance have? The article draws on narrative analysis to explore the conditions for transformation of legal consciousness and mobilization of political action in a judicial retention election.

Type
Articles
Information
Law & Society Review , Volume 33 , Issue 1 , 1999 , pp. 123 - 160
Copyright
Copyright © 1999 by The Law and Society Association.

Footnotes

The authors wish to thank Michael McCann, Austin Sarat, and Alice Hearst for their helpful comments on earlier drafts.

References

References

Adamany, D., & Dubois, P. (1976) “Electing State Judges,” 3 Wisconsin Law Rev. 731.Google Scholar
Administrative Office of the Courts (1994) “Court Administrator's Office Decries Gross Inaccuracies in Complaints Lodged against Judge [Owen Bishop],” News release, 11 Nov.Google Scholar
Administrative Office of the Courts (1996) “Press Statement: Retention Elections,” 6 Nov.Google Scholar
Aspin, Larry T., & Hall, William K. (1994) “Retention Elections and Judicial Behavior” 77 Judicature 306.Google Scholar
Beck, Paul Allen, & Jennings, M. K. (1982) “Pathways to Participation,” 76 American Political Science Rev. 94.Google Scholar
Brady, H. E., Verba, Sidney Orman, & Schlozman, K. L. (1995) “Beyond SES: A Resource Model of Political Participation,” 89 American Political Science Rev. 271.Google Scholar
Bright, Stephen B. (1997) “Political Attacks on the Judiciary,” 80 Judicature 165.Google Scholar
Brooks, Peter, & Gewirtz, Paul, eds. (1996) Law's Stories: Narrative and Rhetoric in the Law. New Haven, CT: Yale Univ. Press.Google Scholar
Bruner, Jerome A. (1986) Actual Minds, Possible Worlds. Cambridge: Harvard Univ. Press.CrossRefGoogle Scholar
Carbon, Susan B., & Berkson, Larry Charles (1980) Judicial Retention Elections in the United States. Chicago: American Judicature Society.Google Scholar
Cilwick, Ted, & McCann, Sheila R. (1996) “Utah Lawyers Have Dim View of Pair of District Judges; Two Judges Fare Poorly in Analysis,” Salt Lake Tribune, 20 Oct., A-19.Google Scholar
Clyde, A. H. (1990) Utah Task Force on Gender and Justice. Report to the Utah Judicial Council.Google Scholar
Comaroff, Jean, & Comaroff, John (1991) Of Revelation and Revolution, Vol. 1. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Costanzo, Joe (1998) “Court Axes Discipline Commission for Judges,” Deseret News, 11 July, B-1.Google Scholar
Crenshaw, Kimberlé (1992) “Whose Story Is It Anyway? Feminist and Antiracist Appropriations of Anita Hill,” in Morrison, T., ed., Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas and the Constitution of Social Reality. New York: Pantheon Books.Google Scholar
Culver, John H., & Wold, John T. (1986) “Rose Bird and the Politics of Judicial Accountability in California,” 70 Judicature 81.Google Scholar
Daniels, Scott (1996) “Judge [Bishop] Deserves Retention,” Deseret News, 3 Nov., AA-5.Google Scholar
Dubois, Philip (1986) “Accountability, Independence, and the Selection of State Judges: The Role of Popular Judicial Elections” 40 Southwestern Law J. 31.Google Scholar
Evans, Deann (1995) “More than Awards for Journalists,” Salt Lake Tribune, 21 May, F-2.Google Scholar
Ewick, Patricia, & Silbey, Susan S. (1995) “Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative,” 29 Law & Society Rev. 197–226.Google Scholar
Silbey, Susan S. (1998) The Common Place of Law: Stories from Everyday Life. Chicago: Univ. of Chicago Press.Google Scholar
Funk, Marianne (1994) “Utah Plans to Change the Way Judges are Judged,” Deseret News, 4 Dec, B-1, B-3.Google Scholar
Gacnik, Rosemary, ed. (1992) Media Guide to the Utah State Courts. Salt Lake City: Administrative Office of the Courts.Google Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95.Google Scholar
Gordon, Robert W. (1984) “Critical Legal Histories,” 36 Stanford Law Rev. 57–125.Google Scholar
Griffin, Kenyon N., & Horan, Michael J. (1979) “Merit Retention Elections: What Influences the Voters,” 63 Judicature 78.Google Scholar
Hall, William K., & Aspin, Larry T. (1987) “What Twenty Years of Judicial Retention Elections Have Told Us,” 70 Judicature 340–48.Google Scholar
Handberg, Roger (1994) “Judicial Accountability and Independence: Balancing Incompatibles?” 49 Univ. of Miami Law Rev. 127–37.Google Scholar
Handler, Joel F. (1978) Social Movements and the Legal System: A Theory of Law Reform and Social Change. New York: Academic Press.Google Scholar
Hunt, Stephen (1995) “Court: Divorced Mom, Kids Can Move to Oregon,” Salt Lake Tribune, 4 Jan., D-1, D-3.Google Scholar
Hunt, Stephen (1996) “Thief Who Fled Court May Get New Judge,” Salt Lake Tribune, 1 May, B-2.Google Scholar
Hunt, Stephen, & McCann, Sheila R. (1994a) “Killer's Sentence Too Light, Says Family of Gay Victim,” Salt Lake Tribune, 16 Aug., C-1, C-3.Google Scholar
McCann, Sheila R. (1994b) “Complaints against Judges Vanish in Utah's Secret Government Recess,” Salt Lake Tribune, 4 Sept., A-4.Google Scholar
McCann, Sheila R. (1994c) “Is Utah Judge Unjust or Just Doing His Job?” Salt Lake Tribune, 4 Sept., A-1.Google Scholar
Jacob, Herbert (1983) “Trial Courts in the United States: The Travails of Exploration,” 17 Law & Society Rev. 407–25.Google Scholar
Johnson, Charles A., et al. (1978) “The Salience of Judicial Candidates and Elections,” 59 Social Science Quarterly 371.Google Scholar
Kairys, David, ed. (1982) The Politics of Law: A Progressive Critique. New York: Pantheon.Google Scholar
Kennedy, D. (1982) “Antonio Gramsci and the Legal System,” 6 ALSA Forum 32.Google Scholar
Klots, A. T. (1955) “The Selection of Judges and the Short Ballot,” 38 J. of the American Judicature Society 134.Google Scholar
Lovrich, Nicholas P., Pierce, John C., & Sheldon, Charles H. (1989) “Citizen Knowledge and Voting in Judicial Elections,” 72 Judicature 28–33.Google Scholar
Lovrich, Nicholas P., & Sheldon, Charles H. (1983) “Voters in Contested, Nonpartisan Judicial Elections: A Responsible Electorate or a Problematic Public?” 36 Western Political Q. 241.Google Scholar
Luskin, Robert C., et al. (1994) “How Minority Judges Fare in Retention Elections,” 77 Judicature 316–22.Google Scholar
Maffly, Brian (1997a) “Court Says Judge Violated Ethics,” Salt Lake Tribune, 9 Oct., C-2.Google Scholar
Maffly, Brian (1997b) “High Court Orders 3rd Trial for 7-Year-Old Divorce Battle,” Salt Lake Tribune, 31 Dec, B-1.Google Scholar
Matsuda, Mari J. (1987) “Looking to the Bottom: Critical Legal Studies and Reparations,” 22 Harvard Civil Rights-Civil Liberties Law Rev. 323–99.Google Scholar
McCann, Michael W. (1994) Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: Univ. of Chicago Press.Google Scholar
McCann, Michael W., & March, Tracey (1995) “Law and Everyday Forms of Resistance: A Socio-Political Assessment,” in Sarat, A. & Silbey, S. S., eds., Studies in Law, Politics, and Society. Greenwich, CT: JAI Press.Google Scholar
McCann, Sheila R. (1994) “Magazine: Utah Jurist Is ‘Sexist,’ [Bishop] Refutes Charge, Calls Women Superior. Judge Denies He Is ‘Sexist',” Salt Lake Tribune, 11 Nov., B-1.Google Scholar
McCann, Sheila R. (1995) “Probes of Judges' Conduct Appear to Go Nowhere,” Salt Lake Tribune, 9 June, C-1.Google Scholar
McCann, Sheila R. (1996) “Court Changes Ruling by Judge [Bishop],” Salt Lake Tribune, 17 April, C-1.Google Scholar
McKnight, R. Neal, et al. (1978) “Choosing Judges: Do the Voters Know What They're Doing?” 62 Judicature 94.Google Scholar
Merry, Sally Engle (1985) “Concepts of Law and Justice among Working-Class Americans: Ideology as Culture,” 9 Legal Studies Forum 59–71.Google Scholar
Merry, Sally Engle (1990) Getting Justice and Getting Even: Legal Consciousness among Working Class Americans. Chicago: Univ. of Chicago Press.Google Scholar
Milbrath, Lester W., & Goel, Madan Lal (1977) Political Participation. Chicago: Rand McNally.Google Scholar
Moxley, Paul T. (1994) “Letter-to-the-Editor: Judge [Bishop] the Target of Unfair Public Criticism,” Salt Lake Tribune, 20 Aug., A-8.Google Scholar
Mullinax, Otto B. (1973–74) “Judicial Revision: An Argument against the Merit Plan for Judicial Selection and Tenure,” 5 Texas Tech Law Rev. 21.Google Scholar
National Organization for Women (1995) “One Woman Every Woman: Working Together,” NOW in Utah, July/Aug., 1.Google Scholar
Olson, Susan M. (1984) Clients and Lawyers: Securing the Rights of Disabled Persons. Westport, CT: Greenwood Press.Google Scholar
Parkinson, C. (1996) “Attorneys Question Ad Listing Judge's Supporters,” Deseret News, 31 Oct., B-1, B-2.Google Scholar
Paulsen, Lynn (1994) “Letter-to-the-Editor: Judge Deserves Respect,” Salt Lake Tribune, 22 Aug., A-8.Google Scholar
Reinharz, Shulamit, & Davidman, Lynn (1992) Feminist Methods in Social Research. New York: Oxford Univ. Press.Google Scholar
Repanshek, Kurt (1994) “Keep LDS Children in County, Judge Tells Divorced Mom: Judge Bars Divorced Mom from Moving, Says This Is the Place to Rear LDS Kids,” Salt Lake Tribune, 17 May, A-1.Google Scholar
Resnik, Judith (1988) “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” 61 Southern California Law Rev. 1877.Google Scholar
Rivera, Ray (1999) “Justices Reverse Judicial-Panel Ruling,” Salt Lake Tribune, 23 Jan., D–1.Google Scholar
Roily, Paul, & Jacobsen-Wells, JoAnn (1994a) “Roily and Wells,” Salt Lake Tribune, 12 Aug., D-1.Google Scholar
Jacobsen-Wells, JoAnn (1994b) “Roily and Wells,” Salt Lake Tribune, 18 Nov., B-1.Google Scholar
Salt Lake Tribune (1994) Our View (Editorial): “Sentence Reduces Life's Value,” Salt Lake Tribune, 18 Aug., C-1.Google Scholar
Salt Lake Tribune (1996) Our View (Editorial): “Voter, Judges on Trial,” Salt Lake Tribune, 23 Oct., A-8.Google Scholar
Sanders, Gregory L. (1994) “Letter-to-the-Editor: One-Sided Attacks on Judge [Owen Bishop] Are Reprehensible,” Salt Lake Tribune,, 27 Aug., A-12.Google Scholar
Sarat, Austin (1990) “The Law Is All Over': Power, Resistance and the Legal Consciousness of the Welfare Poor,” 2 Yale J. of Law & the Humanities 343.Google Scholar
Sarat, Austin, & Felstiner, William L. F. (1989) “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Society Rev. 93–134.Google Scholar
Schafran, Lynn Hecht (1987) “Documenting Gender Bias in the Courts: The Task Force Approach,” 70 Judicature 280–91.Google Scholar
Shaw, Leander Jr. (1992) “Florida's Judicial Merit Selection and Retention System: The Better Alternative,” 20 Florida State Univ. Law Rev. 283–90.Google Scholar
Silbey, Susan S. (1998) “Ideology, Power and Justice,” in Garth, B. G. & Sarat, A., eds., Justice and Power in Socio-Legal Studies. Evanston, IL: Northwestern Univ. Press.Google Scholar
Silverstein, Helena (1996) Unleashing Rights: Law, Meaning, and the Animal Rights Movement. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Smith, Christopher E. (1991) Courts and the Poor. Chicago: Nelson-Hall.Google Scholar
Southern California Law Review (1988) “USC Symposium Judicial Election, Selection, and Accountability,” 61 Southern California Law Rev. 1555–2073.Google Scholar
Trubek, David M. (1984) “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stanford Law Rev. 575–622.Google Scholar
University of Miami Law Review (1994) “Selection and Retention of Judges: Is Florida's Present System Still the Best Compromise?” 49 Univ. of Miami Law Rev. 1–158.Google Scholar
Utah Judicial Council (1992) Utah Courts Directory. Salt Lake City: Administrative Office of the Courts.Google Scholar
Utah Gender Fairness Committee (1996) Gender and Justice in Utah: A Six Year Follow-up on the Utah Task Force on Gender and Justice Report. Report to the Utah Judicial Council. Salt Lake City: The Committee.Google Scholar
Utah Lieutenant Governor (1996) Utah Voter Information Pamphlet. Salt Lake City: Office of the Lieutenant Governor.Google Scholar
Verba, Sidney Orman, & Nie, N. H. (1972) Participation in America: Political Democracy and Social Equality. New York: Harper & Row.Google Scholar
Verba, Sidney Orman, Schlozman, K L., Brady, H. E., & Nie, N. H. (1993) “Citizen Activity: Who Participates? What Do They Say?” 87 American Political Science Rev. 303.Google Scholar
Volcansek, M. L. (1982) “The Effects of Judicial Selection Reform: What We Know and What We Do Not,” in Dubois, P. L., ed., The Analysis of Judicial Reform. Lexington, MA: Lexington Books.Google Scholar
Watson, Richard Abernathy, & Downing, Rondal G. (1969) The Politics of the Bench and the Bar: Judicial Selection under the Missouri Nonpartisan Court Plan. New York: John Wiley & Sons.Google Scholar
Webster, Peter D. (1995) “Selection and Retention of Judges: Is There One ‘Best’ Method?” 23 Florida State Univ. Law Rev. 1–43.Google Scholar
Weller, Sheila (1994) “More of America's Most Sexist Judges,” Redbook, Dec, pp. 88–90, 120.Google Scholar
Williams, Raymond (1977) Marxism and Literature. New York: Oxford Univ. Press.Google Scholar
Wilson, Anne (1995) “Some See Ogden Surgeon as a Godsend …,” Salt Lake Tribune, 1 Oct., A-1.Google Scholar
Wold, John T., & Culver, John H. (1987) “The Defeat of the California Justices: The Campaign, the Election, and the Issue of Judicial Accountability,” 70 Judicature 348.Google Scholar

Case

Larson v. Larson, 255 Utah Adv. Rep. 61 (1994).Google Scholar

Statute

Utah Code Annotated, Utah Court Rules: State and Federal Rules and Code of Judicial Administration, 1997.Google Scholar