The New York Times has published an editorial, “Judicial Elections and the Bottom Line,” lamenting the fact that “32 states will be holding contested elections or retention votes for judges on their highest courts.” The Times is certainly entitled to its own opinion, but not its own facts, and in this case they rely on a widely discredited Center for American Progress report on state courts. As I noted last week, the CAP report was riddled with so many factual errors that no one could comfortably rely on its claims. And, like the CAP report, the Times has made significant factual errors. The editorial claims that “an ideological battle in Florida, an expensive and partisan one in North Carolina and others are providing uncomfortable lessons about why judges on the highest courts should be appointed rather than elected.” Florida is a Missouri Plan state, which means judges are already appointed. And, contrary to the Times’s factual assertion, North Carolina’s judicial elections are non-partisan.
In any event, the Times has relied on this troubled report, and, since this is an election year, I expect these and similar claims to reverberate through the echo chamber. So let me reply to the Times’s broadest criticism, that ”elections turn judges into politicians, and the need to raise money to finance ever more expensive campaigns makes the judiciary more vulnerable to improper influence by donors.”
I don’t deny that concern. I would question any judicial selection method that facilitated capture of the judiciary by a particular special interest, or allowed litigants to buy judges. That is precisely why I oppose the Missouri Plan: overwhelming evidence shows that it has facilitated the capture of state high courts by left-leaning lawyers, tilting state-supreme-court jurisprudence to the left on a range of issues from tort liability to abortion.
Can the same be said of judicial elections? A lawyer can certainly try to buy a judge’s favor. Just a few years ago one of the top plaintiffs lawyers in the country, Dickie Scruggs, was convicted for attempting to bribe a judge in Mississippi.
But empirical evidence does not convincingly point to a systematic problem with judicial elections that justifies replacing them with the Missouri Plan, a method that is likely more susceptible to abuse. In a paper published in March by the Federalist Society, a “Survey of Empirical Evidence Concerning Judicial Elections,” Professor Chris Bonneau evaluated popular arguments against judicial elections in light of empirical evidence. Immediately below are excerpts from that paper, which address the most relevant claims.
Claim: “Justice Is For Sale”
The literature on this is mixed. Some scholars have found a correlation between campaign contributions and judicial decisions while others have not, at least under some conditions. The difficulty with this whole line of research is establishing causality from simple correlational measures. The methodological problem is summarized succinctly by Cann:
They argue that a correlation between campaign contributions and judicial decisions exists because contributions from attorneys on the liberal (conservative) side of a case leads judges to reciprocate by voting in a liberal (conservative) way. But it may be that attorneys who generally find themselves on the liberal (conservative) side of a case contribute to candidates who are already likely to rule in a liberal (conservative) direction. This contributions strategy increases the chances of their preferred candidate winning. If their candidate is elected, they are more likely to win cases before them, not because the judge’s vote was influenced by the campaign contribution, but because it was the judge’s propensity to vote in a particular way that led to the contribution in the first place.
[B]ased on the existing empirical evidence, one cannot look at the existing evidence in Michigan, Texas, Nevada, or anywhere else and conclude that justice is for sale.
Claim: “Judicial Elections Lead to a Loss of Legitimacy”
Most recently, Gibson, Jeffrey Gottfried, Michael Delli Carpini, and Kathleen Hall Jamieson52 examined whether the positives from judicial elections outweigh the negatives. Using a survey experiment conducted in Pennsylvania in 2007, the authors found:
Elections by themselves seem to generate more support for the judiciary; these data do suggest that courts do in fact profit to some degree from their periodic encounters with voters. At the same time, however, the positive effect of elections is dampened by the campaign ads that associate courts with ordinary voters. The effect is not great, and not great enough to neutralize entirely the positive consequences of exposure to the judiciary.
That is, the net effects of elections are positive. Elections serve to enhance the legitimacy of the office.
Claim: “Judges Change Their Decisions on Cases When They Need to Face the Electorate”
Overall, the evidence that judges consider their likelihood of reelection when making judicial decisions is pretty persuasive. However, what this means, exactly, is far from clear. One could conclude that judges are not following the law because they are afraid of losing their jobs, but one could also argue that the evidence shows that the electorate is forcing the judges to do their jobs (instead of following their own personal predilections) or risk losing an election. For example, consider the issue of sentencing. Judges have discretion in sentencing. This means there is a range of punishment that the state legislature has determined is appropriate for a crime. So, whatever decision a judge makes within that range is permissible. If the public desires a judge to be more punitive than she would otherwise want to be, there is nothing wrong with that from a legal or constitutional standpoint. Likewise with the death penalty: the Supreme Court has determined that the death penalty is a constitutional form of punishment for some crimes. If a judge in a state with the death penalty categorically refuses to use it, then that judge is not following the law; that judge is substituting her own policy preferences for the constitutionally permissible laws of the state. If an election makes that judge more likely to uphold a death sentence, then the election is forcing the judge to do her job and follow the law. The general point is that while there is evidence that judges behave differently in the face of elections, it is unclear what this change in behavior means or if it is problematic.
I am a fan of the federal method of selection and would have no problem if the New York Times’s mention of Florida were a sign that the paper would like the state to abandon the Missouri Plan in favor of that method. But I fear the mention of Florida was simply a mistake, and that the editors are carrying water for advocates who would like to see as many states as possible use the method of selection preferred by trial lawyers and liberal special interests.