In Defense of Judicial Elections

Jun 17 '10

That is the title of a new book by Chris Bonneau and Melinda Gann Hall. My colleauge Brandon Bartels has an interesting interview with both of them over at Concurring Opinions. Bonneau and Hall believe that partisan elections of State Supreme Court judges are entirely appropriate, contra the views of many reformers, including Sandra Day O’Connor. Here is Hall:

bq. 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.

bq. 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.

See also Lee’s earlier post on James Gibson’s research, which reaches similar conclusions.