Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

Authors


  • This research has been supported by the Law and Social Sciences Program of the National Science Foundation (SES 0451207). Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the National Science Foundation. I greatly value the support provided for this research by Steven S. Smith and the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis. Criticism of an earlier paper of mine by Rick Lempert played an important role in stimulating this current research. I appreciate the help of John Geer in understanding the meanings of the responses to the attack ad experiment.

Please address correspondence to James L. Gibson, Department of Political Science, Washington University in St. Louis, Campus Box 1063, 207 Seigle Hall, St. Louis, MO 63130-4899; e-mail: jgibson@wustl.edu.

Abstract

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench.

Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions.

The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.

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