Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections.

• Author: Kang, Michael S.
• Position: Book review

ATTACKING JUDGES: HOW CAMPAIGN ADVERTISING INFLUENCES STATE SUPREME COURT ELECTIONS. BY Melinda Gann Hall. Stanford: Stanford University Press. 2015. Pp. xvi, 244. $27.95.

INTRODUCTION

Melinda Gann Hall's (1) new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us--a powerful defense of today's partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the "corrosive effect of money on judicial election campaigns" and "attack advertising," the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. (2) Justice O'Connor, who has championed judicial-election reform since her retirement from the Supreme Court, warns that "there are many who think of judges as politicians in robes" and agrees "[i]n many states, that's what they are." (3) Melinda Gann Hall, a political scientist and authority on judicial behavior, sets out in her book to challenge some of these claims.

Without question, Attacking Judges is an important empirical assessment of the new style of judicial elections, right at a moment when such assessments are most needed. Hall brings together data on election results and television advertising in state supreme court races from 2002 to 2008, purporting to buck the popular imagination about attack advertising in judicial elections. Hall argues that attack advertising in state supreme court elections has little of the electoral impact that critics of judicial elections fear. Attack advertising reduces incumbents' vote share in nonpartisan elections, but it has no statistically significant effect on incumbents' vote share in partisan elections (p. 113). What is more, Hall shows that attack advertising improves voter participation in state supreme court elections, at least in nonpartisan races (p. 157). Voters in nonpartisan elections do not have partisan cues about how to vote, but attack advertising motivates them to vote against incumbents targeted by those ads and effectively increases voter participation in state supreme court contests (p. 161).

Although the book's empirical findings are immensely valuable, we nonetheless believe the book misses the overarching critique against the current state of judicial elections. A basic suggestion underlying the analysis is that judges perform a similar function of democratic representation as their elected counterparts in the legislative and executive branches. Hall minimizes worries about attack advertising in judicial elections in part because her work demonstrates the "remarkable similarities between state supreme court elections and elections to other important offices in the United States" (p. 126). But it is these remarkable similarities that are, in a nutshell, exactly what critics see as the problem with judicial elections. Attacking Judges does not rebut Justice O'Connor's indictment of elected judges as politicians in robes; it actually might substantiate them.

Electoral and campaign-finance pressures that lead judges to sensitivity about voter response and to act more like partisan politicians bending toward public opinion are precisely the concerns about today's "new style of free-for-all judicial elections." (4) In our view, Hall's findings reinforce the intensity of this concern, at least when her findings are combined with our own. We recently released, as part of an American Constitution Society (ACS) report, an empirical study of campaign advertising and state supreme court decisionmaking in criminal appeals. (5) Our study examined the general relationship between television campaign advertising and judicial decisionmaking. We found that the more television ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.

We extend our earlier study here by exploring the empirical relationship between attack advertising and judicial decisionmaking. We demonstrate that judges apparently respond to the threat of attack advertising in just the way that critics of judicial elections fear. Television attack ads, which often vilify judges for casting votes in favor of criminal defendants, are associated with an increase in judicial hostility to criminal defendants in state supreme court appeals. Even if attack advertising does not reduce judges' reelection rates, our findings offer a worrisome explanation for this result and depict a considerably bleaker picture of judicial elections. Our findings here, in combination with previous work, suggest that judges might feel pressure to preempt electoral vulnerabilities on the critical issue of criminal law as campaign spending and attack advertising run higher. (6)

If judges win reelection at least in part because they appease public opinion by biasing themselves against criminal defendants, then we think there is less cause for relief than Attacking Judges perhaps implies. Of course, elected state judges bring their own judicial philosophy and political values to the bench, which influence their decisionmaking in virtually every case, including criminal ones. The problem is, at least for critics of today's judicial elections, judges are institutionally charged with a countermajoritarian function distinct from other elected officials. Unlike other elected politicians, judges are expected not to shift their positions according to the public response and their reelection prospects in quite the same way.

A normative endorsement of judicial elections based on Attacking Judges thus would be motivated less by the book's empirical findings than fixed at the outset by an initial premise that judicial elections should work just like elections for other elected politicians. In our view, once Attacking Judges is coupled with our own work, the resulting empirical picture actually may cut against the case for judicial elections more than it supports it.

Part I introduces Attacking Judges and presents the great strength of the book: its rich empirical findings about attack advertising in state supreme court elections. Part II, though, explains that the book's findings tell us less normatively about attack advertising than it might seem. Part II details the scholarly literature on judicial decisionmaking in criminal law and suggests that attack advertising might affect judges even when it does not change election outcomes like critics fear. Finally, Part III presents our new empirical analysis of attack advertising's relationship to state supreme court decisionmaking in criminal appeals and shows how decisions become more hostile to criminal defendants as attack advertising increases.

1. ATTACKING JUDGES

   Historically speaking, Americans have never been happy with any method of judicial selection for very long. (7) In the early years of the nation, state judges were selected to the bench exclusively by legislative or gubernatorial appointment. Judicial elections, almost unique to the United States as a comparative matter, were a later innovation. Over the nineteenth century, judicial selection at the state level gradually evolved away from appointment as the public began to worry about judicial independence under legislative processes rife with party cronyism. Reformers successfully shifted judicial selection toward popular election under a theory that today's critics of judicial elections would find surprising: that elections would actually make the judiciary less political, dependent on voters rather than partisan legislatures. (8)

   Judicial elections, though, would prove disappointing in time as well. Judicial selection in the United States continued a cycle of reform and public disillusionment into the twentieth century. Familiar debates about judicial independence and accountability recurred, only this time about partisan judicial elections that proved quite political themselves. State practices splintered across disparate electoral approaches, including judicial recall, nonpartisan elections, and merit selection. Today, thirty-nine states still elect their trial or appellate judges such that roughly nine out of ten state judges face election to keep their jobs. (9) Fifteen states choose their state supreme court justices by nonpartisan election, and seven do so by partisan judicial election, while twelve states forgo elections and appoint their state supreme court justices (p. 37). The remaining sixteen states have adopted merit selection, a hybrid method that gained steam during the twentieth century before seeming to peter out recently (pp. 36-37, 41). Merit selection combines initial appointment with retention elections in which sitting judges must win voter approval by an unopposed up-or-down vote to stay in office (pp. 37-38).

   It is safe to say that the legal community has again cycled back to widespread criticism and consternation about judicial elections. (10) Hall begins Attacking Judges by underscoring that "[n]owhere are these misgivings being expressed more vociferously than in the context of state judiciaries by the nation's most distinguished court reform organizations and an almost singular voice in the legal community" (p. 1). The ABA formally recommends that states abolish contested judicial elections and adopt merit selection of judges. (11) It explains that "[j]udges have a responsibility to know and impartially apply the law to the facts of the case at hand. In important ways, today's judicial elections often undermine judges' ability to perform this essential role." (12) Justice O'Connor has energetically campaigned for judicial election reform since retiring from the Supreme Court and has opined about judicial elections: "They're awful. I hate them." (13)

   Hall challenges critical...