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27 October 2009


A. Smith

The electorate knows nothing about what judges do. The electorate knows little or nothing about judicial candidates. Money is a principal factor in judicial elections. Likewise those who appoint judges know nothing about what judges do. And they too know little or nothing about judicial candidates. Money and other consideration also is a principal factor in judicial appointments. The money or other present or expected future benefit goes to the appointers instead of to the candidates. The same kinds of people end up on the benches either way. The notion that there is "merit" selection is absurd.

Sara Benesh

FYI -- the Coburn Amendment has failed. The vote was 62 against, 36 for. (Hat tip: Monkey Cage)

Melinda Gann Hall

This is a point that Chris Bonneau and I make in In Defense of Judicial Elections and in our 2008 AJPS, as well as my article next month in Justice System Journal. There is likely a very strong selection bias here. For contradictory evidence of any negative effects of partisan elections on citizens' perceptions of courts, see Kelleher and Wolak's 2007 PRQ article and Gibson's recent JOP. Also, Cann and Yates show that only uninformed voters in election states are less confident in courts (the model with interaction terms). Thus, it would seem that information is a powerful antidote to negative evaluations.

Sara Benesh

I just happened to take a look at a recent APR (36(2)) and noticed an article by Damon M. Cann and Jeff Yates -- they DO find that partisan elections and concerns over campaign contributions negatively influence diffuse support for state courts. Other research does find similarly, including my own (2006 JOP), though I admittedly use a less-than-optimal dependent variable. I wonder whether there is some sort of confound here -- is there something about a state that chose partisan or nonpartisan election of its judges that might also explain lower levels of support for courts? In other words, are they electing judges BECAUSE they don't trust them and want to keep them accountable? If anyone has a cite to which they could direct me on this point, I'd appreciate it.

Melinda Gann Hall

Thanks, Sara, for the mention of In Defense of Judicial Elections. I have just posted an entry on the Voir Dire Blog http://lawandcourts.wordpress.com/ on this very subject. Advocates have little interest in evidence produced by systematic methods when that evidence contradicts their agendas. Instead, advocates either ignore this work altogether or seek to discredit it using any tactic available. Political scientists seek truth, while many political actors seek merely to forward their own self-interest, regardless of how altruistically framed. In this way, science and politics often are incompatible, and political science is deemed "irrelevant."

Chris W. Bonneau

Thanks for Sara for the shout out. Obviously, there is much in the review Melinda and I would dispute. And it is worth noting that both the AJS and Justice at Stake are on record decrying the current state of electing judges. (Indeed, AJS' raison d'etre is to promote the "merit" selection of judges.) This is the kind of review we'd expect to get from folks with a vested interest in the issue of judicial selection. But, as Sara correctly points out, the empirical research just doesn't support many of the claims made by judicial reformers.

Chris Hanretty

Let me say that research on election versus merit-based appointment is much further advanced than the comparative literature on appointing judges by government, legislature, both together, or by the judiciary -- that research is almost non-existent.

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