Sunday, June 26, 2011
"In Defense of Judicial Elections" - author Q&A
In their book “In Defense of Judicial Elections” authors Melinda Gann Hall and Chris Bonneau do just that – they provide a defense of judicial elections. Their work has been somewhat controversial and so I decided to spice up our Prawfs summer by conducting a very brief “E-Interview” with them on the subject. My understanding is that they are generally willing to engage in some ‘give and take’ in the comments section of the blog. This does not necessarily mean that they will answer every question – it’s their call.JY - Judicial elections have gotten a lot of media attention in recent years and a number of groups and even former SCOTUS justice Sandra Day O'Connor have voiced their opposition to them. In your book "In Defense of Judicial Elections" you obviously takes a different view - please elaborate.
CB - I think the main difference is that our research and analysis begins from a place of agnosticism and we only make conclusions based on the empirical data. Moreover, our position is subject to being revised in the future if the evidence warrants. The vast majority of the opponents of judicial elections are not interested in how they actually work. They aren't interested in empirically verifying their claims. And, when people dare to question their assumptions (whether it be us or Jim Gibson or Matt Streb or Eric Posner or anyone else), they simply ignore the evidence and shift their argument.
MGH: The most significant difference between our book and much of the advocacy taking place on this topic is that we rely on empirics rather than outdated normative theories or unsubstantiated assumptions. Elections certainly have limitations but of the case against them rests on hyperbolic rhetoric or unverified hypotheses.
JY - Aren't you concerned that some of the less desirable aspects of political elections will influence judicial decision making? Won't powerful interests cast undue influence on case outcomes, given that they might have helped finance a judge’s reelection or might do so in the future?
MGH - Recusal standards and disclosure requirements will go a long way toward remedying this problem. However, there is no reason to expect a quid pro quo relationship between donors and judges. Money tends to support candidates who share a group's interests. There is no evidence at all that judges are "bought. We also should acknowledge that there is no way to remove politics from the judicial selection process. Appointment systems, including the “merit” plan, have their own shortcomings.
CB - No more so than some of the less desirable aspects of appointments will influence such decisionmaking. This is a point we have made numerous times, but bears repeating: there is simply no evidence--NONE--of justice being for sale. Moreover, do we really think that "powerful interests" don't have undue influence on case outcomes as, say, the US Supreme Court? Of course they do. At least with elections, voters have a choice and can oust rogue judges.
JY - In recent decades it has become quite clear that judicial elections can be ugly affairs with lots of negative campaigning - doesn't this hurt the judiciary's image - making people see them less as esteemed decision makers and more as politicians in robes?
MGH - Judges are politicians in robes in some sense, and voters are smart enough to recognize this. Judges have a great deal of discretion, and their values influence what they do. Also keep in mind that state supreme court elections have been heated for decades, with defeat rates that surpass many other elected offices. If competitive elections, or elections at all, harm judicial legitimacy, there would be obvious evidence of this by now.
CB: This is a great question and it is a legitimate concern. However, in a series of survey experiments--in KY as well as nationwide--Jim Gibson has found that negative ads and candidates talking about policy have no consequences for legitimacy. He did find a negative effect for campaign contributions, finding that campaign contributions do lead to a loss of legitimacy (this is also true for state legislatures). But, and this is a crucial point, the net effects of elections is still positive. That is, even with the costs incurred by campaign contributions, judicial elections are legitimacy-ENHANCING institutions. This is a really important finding and undermines the arguments of folks like Justice O'Connor and Justice at Stake.
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After having read this interview, I don't think I know what the argument of the book is. I know it defends judicial elections, and it is based on empirical evidence, but I don't know what kind of empirical evidence was relied on to defend judicial elections.
Posted by: Orin Kerr | Jun 27, 2011 4:24:42 PM