Social science at its best combines theoretical rigor with methodological precision to provide answers to pressing real-world questions, and that is what James Gibson delivers in this book. A combination of recent developments—including decisions by the U.S. Supreme Court, heightened competition for state supreme court seats, the increasingly pervasive involvement of interest groups in such campaigns, and dramatic growth in the cost of state judicial races—has created an environment that is rife with conjecture about the effects of judicial campaigns on the institutional legitimacy of state courts. However, as Gibson reminds us, “little rigorous evidence has been produced to document the alleged decline in the legitimacy of courts” about which many have speculated (p. 10). Electing Judges systematically presents readers with that rigorous evidence and, in doing so, serves as an example of our discipline at its best.
Gibson introduces his study by referencing the justices who dissented from the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White. There, by a 5–4 vote, the Court invalidated a state regulation prohibiting judicial candidates from making policy statements in their campaigns on First Amendment grounds. “The assumption” of the four dissenters, Gibson writes, “seems to be that what candidates for judicial offices say during their campaigns can cause fundamental disruptions in how citizens view and evaluate judicial institutions” (p. 1). He skillfully combines an experimental study from Kentucky with a representative national survey to shed considerable insight into the consequences of campaigning for judicial office on institutional legitimacy. In short, he concludes that elections generally enhance judicial legitimacy rather than detract from it, and that much of the conventional wisdom surrounding the potential effects of judges running for office is misguided.
In the book’s first chapter, Gibson provides readers with a review of existing research on judicial legitimacy, a discussion of his choice to focus the study on Kentucky, and an overview of the book’s design. Here, he briefly describes the three-wave panel survey that comprises the bulk of his analysis. The chapter also introduces “Expectancy Theory,” which is articulated more fully in Chapter 5 and is one of the book’s most incisive contributions.
Chapter 2 describes the experimental survey in detail, and highlights the design’s ability to yield high levels of both internal validity and generalizability. To summarize, the experimental vignette to which respondents are randomly exposed varies the institution to which the individual candidate aspires (the Kentucky Supreme Court or Kentucky State Legislature), the level of campaign contributions solicited by the candidate, the degree to which the candidate makes prejudgments about policy, and whether or not attack ads are utilized in the campaign. The dependent variable is the participant’s assessment of judicial (or legislative) impartiality and legitimacy. The author largely replicates the results from the Kentucky experiment in a representative national survey. In sum, his analyses find few differences in the consequences of these activities for legitimacy across the judicial and legislative settings. Of particular note, his data indicate that engaging in policy debates while running for judicial office does not have the deleterious effects on institutional legitimacy that many—including the dissenters in White—have suggested.
Chapter 3 undertakes a more fine-grained test of campaign activities in order to determine when and how some activities may “cross the line” and jeopardize institutional legitimacy. Consistent with previous research (J. L. Gibson and G. A. Caldeira, Citizens, Courts, and Confirmations, 2009), attack ads portraying judges as mere politicians in robes can have damaging effects on legitimacy. Campaign contributions also imperil legitimacy, though the same is true for contributions solicited by those running for the state legislature. Similarly, Gibson finds that legitimacy can suffer when judicial candidates make direct promises to take specific policy actions—but, again, this is true of legislative candidates as well. As he summarizes, “There is little that is peculiar to the judiciary on this score” (p. 69). Chapter 4 assesses the determinants of public attitudes toward the Kentucky Supreme Court. Most of the findings here are unsurprising, largely because of the considerable body of scholarship the author and his colleagues have produced regarding the determinants of support for the U.S. Supreme Court and other high courts around the world.
In many ways, Chapters 5 and 6 are the most illuminating of the book. Chapter 5 introduces the importance of applying Expectancy Theory to studies of judicial legitimacy, and Chapter 6 pushes that discussion further. In these two chapters, Gibson makes a profoundly important observation: Citizens are hardly monolithic as to what they expect or desire from their courts and the judges who serve on them. Indeed, as his data indicate, many citizens expect judges to be political. For such citizens, the politicization of judicial campaigns carries no risk of jeopardizing their goodwill toward the courts.
Whether one considers the campaign as a whole, a particular policy statement, or even a single advertisement, their relevance to assessments of legitimacy inevitably depends on an individual’s expectations about what courts and judges should be doing. Moreover, Gibson finds nontrivial levels of resistance to the supposed “ideal” of judicial independence among ordinary citizens—many prefer judicial accountability to judicial independence. As the author puts it, “citizens’ views of the appropriateness of certain types of judicial activities have a great deal to do with whether those activities undermine judicial legitimacy. … [L]egal elites presume that activities such as discussion of legal ideologies during judicial campaigns are offensive to citizens, not because they are, but because they ought to be. … [L]egal elites are wrong in assuming that public expectations of judges are uniform” (p. 104).
A few might quibble with the decision to focus on Kentucky; indeed, in the book’s final pages, Gibson considers whether Kentucky’s unique nonpartisan, district-based system of supreme court elections may have had some bearing on his results. I was fully satisfied with the author’s justifications for making this choice. Given both the diversity inherent in the workings of judicial elections across the states and Gibson’s replication of these state-level results in his representative national survey, at a bare minimum his utilization of Kentucky as a case study seems as reasonable a choice as any other. The task of teasing out possible variations in these results across specific electoral arrangements is certainly an avenue for further research, though this book has set the bar for scholarship in this area quite high.
In Electing Judges, Gibson has delivered a pathbreaking and provocative book that serves as a reasoned, empirical response to a good deal of conventional wisdom. It promises to be of interest to those who study law and courts, the effects of campaigns on the views and opinions of citizens, the underpinnings of judicial legitimacy, or state politics. It exemplifies the types of consequential, real-world empirical questions that accomplished social scientists are equipped to address, and underscores the wisdom of maintaining sufficient resources to allow them to do so.
