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.