Tagged: judicial selection

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The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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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.

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How Should State Judges Be Selected?

Justice Sandra Day O’Connor has a clearly defined post-retirement mission: Eradicate state judicial elections. While law and courts enthusiasts await the upcoming confirmation process of Supreme Court nominee Elena Kagan, Justice O’Connor continues to push for the end of judicial elections in the states. Her latest effort at advancing this agenda includes an op-ed in the New York Times (from May 21). O’Connor rehashes the normative arguments made previously by herself and other opponents to judicial elections: (1) lifetime appointed judges are not accountable to voters, which preserves judicial independence and impartiality and allows judges to be accountable to the law only; and (2) elected judges “are susceptible to influence by political and ideological constituencies,” which is antithetical to judicial impartiality. In her op-ed, O’Connor essentially recommends the Missouri Plan, or the merit system of selection:

A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system — now used in some form in two-thirds of states — protects the impartiality of the judiciary without sacrificing accountability.

Justice O’Connor’s arguments — and the arguments of reformers more generally — are strong and persuasive. But before you wholeheartedly subscribe to these arguments, I encourage you to read a provocative new book by political scientists Chris W. Bonneau and Melinda Gann Hall titled, In Defense of Judicial Elections (2009, Routledge Press; Amazon link HERE). Like O’Connor, Professors Bonneau and Hall also have a mission: To eradicate myths about judicial elections by empirically analyzing the claims put forth by judicial elections opponents, such as O’Connor. Bonneau and Hall extensively examine data from state supreme court elections from 1990-2004.

Here is the book blurb from Routledge:

One of the most contentious issues in politics today is the propriety of electing judges. Ought judges be independent of democratic processes in obtaining and retaining their seats, or should they be subject to the approval of the electorate and the processes that accompany popular control? While this debate is interesting and often quite heated, it usually occurs without reference to empirical facts–or at least accurate ones. Also, empirical scholars to date have refused to take a position on the normative issues surrounding the practice.

Bonneau and Hall offer a fresh new approach. Using almost two decades of data on state supreme court elections, Bonneau and Hall argue that opponents of judicial elections have made—and continue to make—erroneous empirical claims. They show that judicial elections are efficacious mechanisms that enhance the quality of democracy and create an inextricable link between citizens and the judiciary. In so doing, they pioneer the use of empirical data to shed light on these normative questions and offer a coherent defense of judicial elections. This provocative book is essential reading for anyone interested in the politics of judicial selection, law and politics, or the electoral process.

Click HERE for a book review by Salmon A. Shomade.

One of the themes (among many others) that Bonneau and Hall’s book reminds us of is that no matter how judges are selected (be it judicial elections or the “merit system” for state courts of last resort or the nomination and confirmation processes for federal judges), we can be assured of one thing:  judicial selection is always a political process.