Hostname: page-component-669899f699-g7b4s Total loading time: 0 Render date: 2025-04-24T14:25:46.509Z Has data issue: false hasContentIssue false
  • English
  • Français

Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

Published online by Cambridge University Press:  01 January 2024

James L. Gibson
Get access Rights & Permissions [Opens in a new window]

Abstract

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench.

Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions.

The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.

Type
Articles
Information
Law & Society Review , Volume 42 , Issue 4 , December 2008 , pp. 899 - 928
Copyright
© 2008 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

This research has been supported by the Law and Social Sciences Program of the National Science Foundation (SES 0451207). Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the National Science Foundation. I greatly value the support provided for this research by Steven S. Smith and the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis. Criticism of an earlier paper of mine by Rick Lempert played an important role in stimulating this current research. I appreciate the help of John Geer in understanding the meanings of the responses to the attack ad experiment.

References

References

American Association for Public Opinion Research (2000) Standard Definitions: Final Dispositions of Case Codes and Outcome Rates for Surveys. Ann Arbor, MI: AAPOR.Google Scholar
Baum, Lawrence (2003) “Judicial Elections and Judicial Independence: The Voter's Perspective,” 64 Ohio State Law J. 13–41.Google Scholar
Benesh, Sara C. (2006) “Understanding Public Confidence in American Courts,” 68 J. of Politics 697–707.CrossRefGoogle Scholar
Bopp, James Jr., & Woudenberg, Anita Y. (2007) “An Announce Clause By Any Other Name: The Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising Their Freedom to Speak,” 55 Drake Law Rev. 723–61.Google Scholar
Brace, Paul, & Boyea, Brent D. (2008) “State Public Opinion, the Death Penalty, and the Practice of Electing Judges,” 52 American J. of Political Science 360–72.CrossRefGoogle Scholar
Brace, Paul, et al. (1999) “Judicial Choice and the Politics of Abortion: Institutions, Context, and the Autonomy of Courts,” 62 Albany Law Rev. 1265–304.Google Scholar
Brennan Center for Justice (2006) “Alabama's Supreme Court Primary Campaigns Highlight Radical Transformation of State Judicial Elections.” Press release, 2 June, New York.Google Scholar
Caldarone, Richard P., et al. (2007) “Partisan Labels and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions.” Unpublished paper, Princeton University, Princeton, NJ.Google Scholar
Cann, Damon M., & Yates, Jeff (2008) “Homegrown Institutional Legitimacy: Assessing Citizens' Diffuse Support for State Courts,” 36 American Politics Research 297–329.CrossRefGoogle Scholar
Cook, Thomas D., & Campbell, Donald T. (1979) Quasi-Experimentation: Design and Analysis Issues for Field Settings. Chicago: Rand McNally.Google Scholar
Easton, David (1975) “A Re-Assessment of the Concept of Political Support,” 5 British J. of Political Science 435–57.CrossRefGoogle Scholar
Fagan, Ronald W. (1981) “Public Support for the Courts: An Explanation of Alternative Explanations,” 9 J. of Criminal Justice 403–17.CrossRefGoogle Scholar
Flanagan, Timothy, et al. (1985) “Public Perceptions of the Criminal Courts: The Role of Demographic and Related Attitudinal Variables,” 22 J. of Research in Crime and Delinquency 66–82.CrossRefGoogle Scholar
Geer, John G. (2006) In Defense of Negativity: Attack Ads in Presidential Campaigns. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Gibson, James L. (2007) “The Legitimacy of the U.S. Supreme Court in a Polarized Polity,” 4 J. of Empirical Legal Studies 507–38.CrossRefGoogle Scholar
Gibson, James L. (2008a) “‘New-Style’ Judicial Campaigns and the Legitimacy of State High Courts: Results from a National Survey.” Unpublished manuscript, Washington University in St. Louis, presented at the 2008 Annual Meeting of the Midwest Political Science Association, Chicago, April.CrossRefGoogle Scholar
Gibson, James L. (2008b) “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns,” 102 American Political Science Rev. 59–75.CrossRefGoogle Scholar
Gibson, James L., & Caldeira, Gregory A. (2007) “Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias.” Paper delivered at the 2007 Annual Meeting of the American Political Science Association, 30 Aug.–2 Sept., Chicago.CrossRefGoogle Scholar
Gibson, James L., & Caldeira, Gregory A. (n.d.) Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton Univ. Press, forthcoming.CrossRefGoogle Scholar
Gibson, James L., & Caldeira, Gregory A., et al. (1998) “On the Legitimacy of National High Courts,” 92 American Political Science Rev. 343–58.CrossRefGoogle Scholar
Gibson, James L., & Caldeira, Gregory A., et al. (2003) “Measuring Attitudes toward the United States Supreme Court,” 47 American J. of Political Science 354–67.CrossRefGoogle Scholar
Goldberg, Deborah, et al. (2005) The New Politics of Judicial Elections 2004. How Special Interest Pressure on Our Courts Has Reached a “Tipping Point” —and How to Keep Our Courts Fair and Impartial. Washington, DC: Justice at Stake Campaign [Brennan Center for Justice at New York University School of Law].Google Scholar
Hirsch, Matthew (2006) “Swing Voter's Lament: At Least One Case Still Bugs O'Connor,” Law.com, 8 Nov., http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1162893919695 (accessed 16 July 2007).Google Scholar
Iyengar, Shanto (2002) “The Effects of Media-Based Campaigns on Candidate and Voter Behavior: Implications for Judicial Elections,” 35 Indiana Law Rev. 691–99.Google Scholar
Justice at Stake (2002) “State Judges Frequency Questionnaire,” http://www.justiceatstake.org/files/JASJudgesSurveyResults.pdf (accessed 19 Aug. 2008).Google Scholar
Kelleher, Christine A., & Wolak, Jennifer (2007) “Explaining Public Confidence in the Branches of State Government,” 60 Political Research Q. 707–21.CrossRefGoogle Scholar
Lehne, Richard, & Reynolds, John (1978) “The Impact of Judicial Activism on Public Opinion,” 22 American J. of Political Science 896–904.CrossRefGoogle Scholar
Olson, Susan, & Huth, David (1998) “Explaining Public Attitudes Toward Local Courts,” 20 Justice System J. 41–61.Google Scholar
Overby, L. Marvin, et al. (2004) “Justice in Black and White: Race, Perceptions of Fairness, and Diffuse Support for the Judicial System in a Southern State,” 25 Justice System J. 159–81.CrossRefGoogle Scholar
Rizzo, Louis, et al. (2004) “A Minimally Intrusive Method for Sampling Persons in Random Digit Dial Surveys,” 68 Public Opinion Q. 267–74.CrossRefGoogle Scholar
Sample, James, et al. (2007) The New Politics of Judicial Elections 2006: How 2006 Was the Most Threatening Year Yet to the Fairness and Impartiality of Our Courts—and How Americans are Fighting Back. Washington, DC: Justice at Stake Campaign.Google Scholar
Streb, Matthew J., ed. (2007) Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections. New York: New York Univ. Press.Google Scholar
Walker, Darlene (1977) “Citizen Contact and Legal System Support,” 58 Social Science Q. 3–14.Google Scholar
Wenzel, James P., et al. (2003) “The Sources of Public Confidence in State Courts: Experience and Institutions,” 31 American Politics Research 191–211.CrossRefGoogle Scholar

Cases Cited

Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).Google Scholar
Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005).Google Scholar