Index

Scholarship
- Judicial Elections
  - Campaign Activity
  - Voter Knowledge
  - Accountability and Independence
  - Other
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- Diversity on the Bench
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Scholarship

Judicial Elections

Campaign Activity

Arbour, Brian K., and Mark J. McKenzie. “Has the ‘New Style’ of Judicial Campaigning Reached the Lower Court Elections?” 93 Judicature 150 (2010). (Docstoc)

This article examines whether the “New Style” of judicial elections, whereby candidates spend ever increasing amounts of money to effectively campaign, has spread to lower court elections.
Arrington,Theodore S. “When Money Doesn’t Matter: Campaign Spending for Minor Statewide Judicial and Executive Offices in North Carolina,” 18 Justice System Journal 257 (1996). (Hein)

This empirical study examines statewide partisan judicial elections in North Carolina from 1988 to 1994 and concludes that these elections were unresponsive to expenditures and incumbency because candidates cannot raise enough money to affect the vote.
Aspin, Larry T. “Campaigns in Judicial Retention Elections: Do They Make a Difference?” 20 Justice System Journal 1 (1998). (Hein)

This empirical study of campaigning in judicial retention elections in Illinois finds that although half of the judges in those elections engaged in some campaigning, campaigning activity had no discernible affect on election outcome.
Bonneau, Chris W. “Campaign Fundraising in State Supreme Court Elections,” 88 Social Science Quarterly 68 (2007). (SSRN)

This article examines the determinants of campaign contributions to candidates running for the state supreme court from 1990–2000 and finds that, while candidates with a greater likelihood of success are better able to raise money, the electoral context of the state and the court and the institutional arrangements of the election and the court are also key factors in candidates’ ability to raise money.
Bonneau, Chris W. “Patterns of Campaign Spending and Electoral Competition in State Supreme Court Elections,” 25 Justice System Journal 21 (2004). (SSRN)

This article analyzes campaign spending trends in all contested state elections from 1990–2000.
Bonneau, Chris W. “The Effects of Campaign Spending in State Supreme Court Elections,” 60 Political Research Quarterly 489 (2007). (SSRN)

This article analyzes how campaign expenditures affect incumbents in state supreme court elections and concludes that electoral competition in such elections is influenced by the characteristics of the candidates, the state and electoral context, and institutional arrangements.
Bonneau, Chris W. “What Price Justice(s)? Understanding Campaign Spending in State Supreme Court Elections,” 5 State Politics and Policy Quarterly 107 (2005). (SSRN)

This empirical study analyzes data from 281 state supreme court races in 21 states from 1990–2000 to address why campaign spending varies so greatly among state supreme court elections and finds that spending in such elections is influenced by the characteristics of the race, institutional arrangements, and the electoral and state supreme court context.
Dubois, Philip L. “Penny for Your Thoughts? Campaign Spending in California Trial Court Elections, 1976-1982,” 36 Western Political Quarterly 265 (1986).

This empirical study of judicial campaign expenditures in nonpartisanCaliforniatrial California trial court elections from 1976 to 1982 concludes that when viewed from the systemic level, judicial campaign costs are neither extraordinarily high nor rapidly increasing, and that as compared to expenditures for other political campagins, the costs are insignificant.
Frederick, Brian, and Matthew J. Streb. “Paying the Price for a Seat on the Bench: Campaign Spending in Contested State Intermediate Appellate Court Elections,” 8 State Politics and Policy Quarterly 410 (2008). (Sage)

This empirical study examines the factors that predicted campaign spending in 172 contested state intermediate appellate court races from 2000–2006 and finds that the characteristics of the race, institutional factors, and the context of the campaign are all relevant.
Gibson, James L. “Campaigning for the Bench: The Corrosive Effects of Campaign Speech?” 42 Law and Society Review 899 (2008). (SSRN)

This article uses post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity and concludes that different types of campaign activity (e.g. policy pronouncements and policy promises) have very different consequences.
Gibson, James L. “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns,” 102 American Political Science Review 1, 59 (2008).

This article presents survey data indicating that while campaign contributions and attack ads in judicial elections threaten the legitimacy of courts, policy pronouncements do not.
Gibson, James L. “‘New-Style’ Judicial Campaigns and the Legitimacy of State High Courts,” 71 Journal of Politics 4, 1285 (2009).

This article relies upon an experiment embedded within a representative national survey to conclude that the legitimacy of elected state courts is threatened not by the exercise of the free speech rights extended to candidates for judicial office in Republican Party of Minnesota v. White, but by campaign contributions.
Hall, Melinda Gann, and Chris W. Bonneau. “Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Election,” 52 American Journal of Political Science 3, 457 (2008). (JStor)

This empirical study gathers data from 260 supreme court elections held from 1990–2004 to show that greater campaign spending increases voter participation.
Peters, C. Scott. “Campaigning for State Supreme Court, 2006,” 29 Justice System Journal 166 (2008).

This article reports the results of a survey of candidates who ran in state supreme court elections in 2006 and suggests that candidates’ campaign organizations rely largely on volunteer labor rather than paid staff or consultants, and that parties and interest groups play a limited role in campaign organization.
Peters, C. Scott. “Canons, Cost, and Competition in State Supreme Court Elections,” 91 Judicature 27 (2007).

This article analyzes the effects of different rules that restrict spending for judicial candidates in terms of their impact on both the cost of elections and their level of competition.
Schotland, Roy A. “Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American Democracy,” 2 Journal of Law and Politics 57 (1988).

This article outlines several problems inherent in current judicial campaign financing systems and proposes ways to reform those systems.
Streb, Matthew J., ed., “Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections,” New York: New York University Press (2007). (Amazon)
Thielemann, Gregory S. “Local Advantage in Campaign Financing: Friends, Neighbors, and their Money in Texas Supreme Court Elections,” 55 Journal of Politics 472 (1993). (JStor)

This article argues that Key’s concept of “friends and neighbors” politics, which uses the phenomenon of localism to explain voting behaviors, should be extended into the realm of campaign finance.

Voter Knowledge

Hall, Melinda Gann. “Voting in State Supreme Court Elections: Competition and Context as Democratic Incentives,” 69 Journal of Politics 4, 1147 (2007). (Wiley)

This empirical study of ballot roll-off in 654 supreme court elections from 1980–2000 shows that competition, incumbency, and contextual forces that increase salience and information have an important impact on voter participation.
Klein, David, and Lawrence Baum. “Ballot Information and Voting Decisions in Judicial Elections,” 54 Political Research Quarterly 709 (2001). (JStor)

This article examines the effect of ballot information on voter decisions on whether and how to vote in particular contests and presents the results of experimental manipulations that show that candidates’ party affiliations, but not incumbency status or city of residence, have a substantial effect on those decisions.
Lovrich Jr., Nicholas P., and Charles H. Sheldon. “Voters in Contested, Nonpartisan Judicial Elections: A Responsible Electorate or a Problematic Public?” 36 Western Political Quarterly 241 (1983).

This empirical study of nonpartisan judicial elections taking place in Washington and Oregon in 1980 examines voter turnout, knowledge, attitudes on judicial independence, and other factors, concluding that States should do more to increase voter knowledge and that highly informed voters are more supportive of judicial independence than are less informed voters
Lovrich Jr., Nicholas P., John C. Pierce, and Charles H. Sheldon. “Citizen Knowledge and Voting in Judicial Elections,” 79 Judicature 28 (1989).

This empirical study of voters in Spokane County, Washington, concludes that voters in nonpartisan judicial elections are more well-informed and more interested in public affairs than those who do not vote in judicial elections.
McKnight, R. Neal, Roger Schaefer, and Charles A. Johnson. “Choosing Judges: Do the Voters Know What They’re Doing?” 62 Judicature 94 (1978).

This empirical study of partisan judicial elections in Texas in 1976 finds that the electorate lacks the information necessary to make an elective judicial selection system function properly, and concludes that for judicial elections to fulfill their democratic purpose, organizations should assume a more active role in informing the public about judicial candidates.
Rock, Emily, and Lawrence Baum. “The Impact of High-Visibility Contests for U.S. State Court Judgeships: Partisan Voting in Nonpartisan Elections,” 10 State Politics and Policy Quarterly 368 (2010).

This empirical study examines a series of post-election surveys of voters in fourteen contests for the Ohio Supreme Court over twenty years, concluding that in a state in which candidates’ party affiliations are not disclosed on the ballot, high-visibility contests for judgeships produce more partisan voting than do lower-visibility contests, suggesting that high-visibility elections result in greater voter awareness of basic candidate information and that this information informs voting decisions.
Squire, Peverill., and Eric R.A.N. Smith. “The Effect of Partisan Information on Voters in Nonpartisan Elections,” 50 Journal of Politics 169 (1988).

This empirical study analyzes data from a 1982 California poll survey on state supreme court confirmation elections and concludes that voters use partisan information to structure their voting decisions during nonpartisan judicial elections.
Streb, Matthew J., and Brian Frederick. “Conditions for Competition in Low-Information Judicial Elections,” 62 Political Research Quarterly 523 (2009).

This empirical study analyzes all intermediate appellate court elections involving incumbents from 2000–2007, using data to estimate models of challenger entry and incumbent success once challenged and discussing similarities and differences between these findings and the results of studies of higher-visibility elections.
Streb, Matthew J., Brian Frederick, and Casey LaFrance. “Voter Rolloff in a Low-Information Context: Evidence from Intermediate Appellate Court Elections.” 37 American Politics Research 644 (2009).

This empirical study of ballot rolloff in intermediate appellate court elections suggests that the variables that affect rolloff are in many ways similar at the lower-court and state supreme court levels.

Accountability and Independence

Caldarone, Richard P., Brandice Canes-Wrone, and Tom S. Clark. “Partisan Labels and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions,” 71 Journal of Politics 560 (2009). (Cambridge Journals)

This empirical study of state high court abortion decisions between 1980 and 2006 concludes that judges chosen by nonpartisan election are more likely to issue popular decisions than judges chosen by partisan elections.
Cann, Damon. “Beyond Accountability and Independence: Judicial Selection and State Court Performance,” 90 Judicature 226 (2007). (SSRN)

This article argues that scholars should move beyond the accountability versus independence debate in judicial election issues to pursue direct measures of the quality of court activities, using a national survey of state court judges to show that those who serve in states with merit-based or appointment systems view the quality of justice in their state more favorably than do those in election system states.
Carrington, Paul D. “Judicial Independence and Democratic Accountability in Highest State Courts,” 61 Law & Contemp Probs. 79 (1998).

This article argues that judicial elections, in the manner they are currently conducted, involve risks to public confidence in state high courts; the author proposes measures to reduce such risks, including disqualification rules, expenditure limits, and extended term limits.
Champagne, Anthony, and Greg Thielemann. “Awareness of Trial Court Judges,” 74 Judicature 271 (1991). (HeinOnline)

This article discusses the 1976 Texas Supreme Court election, in which voters chose a candidate who claimed that he took his instructions from God over an established judge with bar association endorsements, and argues that voter ignorance about judges has negative consequences for judicial accountability.
Dimino Sr., Michael R. “Accountability Before the Fact” 22 Notre Dame J.L. Ethics & Pub. Pol’y. 451 (2008). (HeinOnline)

This essay argues that judicial terms of office should be long and non-renewable such that there are neither reelections nor reappointments, and that the initial selection of judges should be by election for high courts and by appointment for lower courts.
Dubois, Philip L. “From Ballot to Bench: Judicial Elections and the Quest for Accountability,” Austin: University of Texas Press (1980).

This book thoroughly analyzes all statewide elections held from 1948 to 1974 for justices of state courts of last resort in nonsouthern states and concludes that non-elective judicial selection systems have not dramatically improved the quality of the bench and that partisan judicial elections go a long way toward achieving their accountability goal.
Gordon, Sanford C., and Gregory A. Huber. “The Effect of Electoral Competitiveness on Incumbent Behavior,” 2 Quarterly Journal of Political Science 107 (2007).

This empirical study of Kansas trial judges—some of whom are chosen by competitive partisan elections and some of whom are chosen by noncompetitive retention elections—concludes that electoral competitiveness motivates trial judges to sentence criminal offenders more harshly.
Hall, Melinda Gann. “Justices as Representatives: Elections and Judicial Politics in the American States,” 23 American Politics Quarterly 4, 485 (1995). (Sage)

This empirical study uses death penalty votes in state supreme courts to show that personal as well as policy considerations affect the goals of judicial actors and that the pursuit of these goals is furthered or hindered by different types of institutional arrangements.
Hall, Melinda Gann. “Electoral Politics and Strategic Voting in State Supreme Courts,” 54 Journal of Politics 2, 427 (1992).(JStor)

This empirical study suggests that state supreme court justices who face competitive elections may vote in a manner consistent with constituent opinion even when their own views differ, and that single-member districts, experience seeking reelection, and narrow vote margins, among other factors, encourage such strategic voting.
Huber, Gregory A., and Sanford C. Gordon. “Accountability and Coercion: Is Justice Blind When It Runs for Office?” 48 American Journal of Political Science 247 (2004). (JStor)

This empirical study analyzes sentencing data from 22,095 Pennsylvania criminal cases in the 1990s, concluding that the judicial election process leads judges to become more punitive as the election season approaches.
Peters, C. Scott. “Canons of Ethics and Accountability in State Supreme Court Elections,” 9 State Politics and Policy Quarterly 24 (2009). (Sage)

This article argues that four out of the five canons of judicial ethics aimed at constraining campaigning make it less likely for challengers to incumbents to win contested elections.
Schotland, Roy A. “Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant Passion?” 46 Court Review No. 1 (2011). (SSRN)

This article addresses the issue of judicial accountability by analyzing the election in which three Iowa Supreme Court justices were defeated as a consequence of their participation in a unanimous decision upholding gay marriage.
Shepherd, Joanna M. “Are Appointed Judges Strategic Too?” 58 Duke L. J. 1589 (2009). (SSRN)

This article provides empirical support for the argument that appointive systems pose an even greater threat to judicial independence than do elective systems.
Shepherd, Joanna M. “Money, Politics, and Impartial Justice,” 58 Duke L. J. 623 (2009).

This article presents empirical evidence that elected state supreme court justices are sensitive to voter and contributor preference when making rulings and suggests possible reforms for restoring judicial independence.
Streb, Matthew J., Brian Frederick, and Casey LaFrance. “Contestation, Competition, and the Potential for Accountability in Intermediate Appellate Court Elections,” 91 Judicature 70 (2007).

This empirical study analyzes 942 intermediate appellate court (IAC) elections held from 2000–2006, finding that while IAC judges are rarely challenged, challengers often prove difficult opponents and incumbents do lose in both partisan and nonpartisan elections.

Other

Gaylord, Scott W. “Unconventional Wisdom: The Roberts Court’s Proper Support of Judicial Elections,” Mich. St. L. Rev. 1521 (2011).

This article explores the effects of the Roberts Court’s recent First Amendment cases on judicial elections. Arguing that the protection afforded speech rights by the Roberts Court actually promotes the independence, accountability, and quality of state court judges.
Aspin, Larry, William K. Hall, Jean Bax, and Celeste Montoya. “Thirty Years of Judicial Retention Elections: An Update,” 37 The Social Science Journal 1 (2000). (accessmylibrary)

This article updates prior reports on the empirical patterns and trends in judicial retention elections. The 3,912 elections encompass both major trial court and appellate court elections in ten states for the period from 1964 through 1994. Reported trends include declines in the affirmative vote, rolloff, and voter differentiation among individual judges.
Behrens, Mark A., and Cary Silverman. “The Case for Adopting Appointive Judicial Selection Systems for State Court Judges,” 11 Cornell J.L. & Pub. Pol’y 273 (2002).

This article reviews the problems associated with judicial elections, including financing issues, unhealthy rhetoric, and the affect of judicial campaigns on public confidence, and argues that an appointive system is necessary for a truly independent judiciary.
Bonneau, Chris W. “Electoral Verdicts: Incumbent Defeats in State Supreme Court Elections,” 33 American Politics Research 818 (2005). (SSRN)

This article examines the determinants of electoral defeat for all incumbent state Supreme Court justices who ran for reelection from 1990–2000 and concludes that the likelihood of an incumbent’s defeat is based on candidate characteristics, the state and electoral context, and institutional arrangements.
Bonneau, Chris W. “Vacancies on the Bench: Open-Seat Elections for State Supreme Courts,” 27 Justice System Journal 143 (2006). (SSRN)

This article discusses open seat state supreme court elections and finds that the outcomes of such elections are determined by candidate characteristics, the electoral context, the value of the seat, and institutional arrangements.
Bonneau, Chris W., and Melinda Gann Hall. “In Defense of Judicial Elections,” New York: Routledge Press (2009). (Amazon)

This article argues that opponents of judicial elections have made erroneous empirical claims and that judicial elections are efficacious mechanisms that enhance the quality of democracy and create an inextricable link between citizens and the judiciary.
Bonneau, Chris W., and Melinda Gann Hall. “Predicting Challengers in State Supreme Court Elections: Context and the Politics of Institutional Design,” 56 Political Research Quarterly 337 (2003). (SSRN)

This article examines the conditions under which state court incumbent judges draw challengers and explores whether those same conditions influence whether the challenger has sufficient experience to pose a threat to the incumbent.
Caufield, Rachel Paine. “What Makes Merit Selection Different?” 15 Roger Williams U. L. Rev. 765 (2010). (Lexis)

This article outlines the history of the movement toward merit selection, analyzes various studies comparing merit systems to elective systems, and concludes that merit-selected judges appear to be more independent from partisan influences, less likely to reflect popular sentiment in their decisions, more diverse, and more ethical than their elected counterparts.
Choi, Stephen J., G. Mitu Gulati, and Eric A. Posner. “Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary,” 26 Journal of Law, Economics, and Organizations 290 (2007). (SSRN)

This empirical study analyzes the decisions of all the judges of the highest court for every state for the years 1998, 1999, and 2000, and concludes that in terms of effort, skill, and independence, appointed judges do not perform at a higher level than their elected counterparts
Dimino, Sr., Michael R. “The Worst Way of Selecting Judges—Except All the Others That Have Been Tried,” 32 N. Ky. L. Rev. 267 (2005).

This article argues that while judicial elections have their defects, alternative judicial selection methods often suffer from similar flaws, and concludes that judicial elections are the best way to choose judges because they have one advantage over other methods: accountability.
Dubois, Philip L. “Voting Cues in Non-Partisan Trial Court Elections: A Multivariate Assessment,” 18 Law and Society Review 395 (1984). (JStor)

This empirical study examines the contributions of incumbency, occupational ballot labels, campaign spending, newspaper and bar association endorsements, voter information pamphlets, and the ethnic and sexual voting cues provided by candidate surnames to the outcomes of the 123 contested primary and run-off elections held for California’s major trial court from 1976 to 1980.
Frederick, Brian, and Matthew J. Streb. “Women Running for Judge: The Impact of Sex on Candidate Success in State Intermediate Appellate Court Elections,” 89 Social Science Quarterly 937 (2008). (Wiley)

This article examines whether a candidate’s sex influences the outcomes in judicial elections.
Gardner Geyh, Charles. “Straddling the Fence between Truth and Pretense,” 22 Notre Dame J.L. Ethics & Pub. Pol’y 435 (2008). (SSRN)

Article examines whether judges decide cases based strictly on law or whether they fit the law to their preferences; and it argues that, while the options present a false dichotomy, there is reason to prefer the law based model beyond court legitimacy.
Gardner Geyh, Charles. “Why Judicial Elections Stink,” 64 Ohio St. L. J. 43 (2003).

This article examines the political realities that cause state judicial elections to fail and proposes a six-point long-term strategy aimed at overcoming popular support for judicial elections, gradually phasing elections out of existence, and replacing them with an appointed mode of selection similar to the federal system.
Hall, Melinda Gann, and Chris W. Bonneau. “Does Quality Matter? Challengers in State Supreme Court Elections,” 50 American Journal of Political Science 1 (2006). (JStor)

This article examines 208 judicial elections from 1990–2000, finding that voters appear to evaluate challengers’ qualifications and that experienced challengers lessen the electoral security of incumbents.
Hall, Melinda Gann. “State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform,” 95 American Political Science Review 2, 315 (2001). (JStor)

This empirical study analyzes state supreme court elections from 1980–1995 and finds that court reformers underestimate the substantive component of partisan elections and overestimate the degree to which nonpartisan and retention elections are insulated from partisan politics.
Hall, Melinda Gann. “Voluntary Retirements from State Supreme Courts: Assessing Democratic Pressures to Relinquish the Bench,” 63 Journal of Politics 4, 1112 (2001). (JStor)

This article presents findings that suggest that while partisan and retention elections promote strategic retirement by state supreme court justices, nonpartisan elections do not.
Menton, Francis Jr., “Book Review: In Defense of Judicial Elections,” 12 Engage 1, 130 (2011).

This article briefly summarizes and reviews “In Defense of Judicial Elections” by Chris W. Bonneau and Melinda Gann Hall.
Pozen, David E. “Judicial Elections as Popular Constitutionalism,” 110 Colum. L. Rev. 2047 (2010). (SSRN)

This article uses the normative theory of popular constitutionalism as a foundation for new arguments for and against an elective judiciary.
Pozen, David E. “The Irony of Judicial Elections,” 108 Colum. L. Rev. 265 (2008). (SSRN)

This article presents an analytic taxonomy of the arguments for and against judicial election systems, discusses the costs and benefits of elective judiciaries in the “new era” of higher campaign spending and increased interest group involvement, and argues that there is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary.
Pozen, David E. “What Happened in Iowa?” 111 Colum. L. Rev. Sidebar 90 (2011).

This article discusses the 2010 Iowa judicial election, in which voters turned out in unprecedented numbers and three justices were removed, in the context of popular constitutionalism and its relationship to federalism and popular sovereignty.
Reid, Traciel V. “Assessing the Impact of a Candidate’s Sex in Judicial Campaigns and Elections in North Carolina,” 25 Justice System Journal 183 (2004).

This empirical study of North Carolina district court elections from 1994 to 1998 examines the impact of a candidate’s sex upon judicial campaigns and judicial elections, concluding that female candidates were able to secure more campaign financing than were male candidates and that it is difficult to demonstrate voter discrimination against female candidates.
Schotland, Roy A. “A Plea for Reality,” 74 Mo. L. Rev. 507 (2009). (SSRN)

This article addresses the ongoing debate about judicial elections and proposes measures to combat the troublesome features of elective systems.
Tarr, G. Alan. “Designing an Appointive System: The Key Issues,” 34 Fordham Urb. L.J. 291 (2007).

This article analyzes the merits of appointive systems and discusses the failure of the electoral system to give judges actual competition.

Democratic Appointment

Bratton, Kathleen A., and Rorie L. Spill. “Existing Diversity and Judicial Selection: The Role of the Appointment Method in Establishing Gender Diversity in State Supreme Courts,” 83 Social Science Quarterly 504 (2002).

This empirical study uses logistic regression analysis to show that, while appointment systems are more likely to create gender diversity on state courts, this effect operates primarily to diversify all-male courts.

Commission-based Selection

Ware, Stephen J. “The Missouri Plan in National Perspective,” 74 Mo. L. Rev. 751 (2009).

This article summarizes the fifty states’ methods of judicial selection and argues for a system that avoids both the undemocratic elitism of the Missouri Plan in selecting judges and the populist dangers associated with retention elections.
Gaylord, Scott W. “Unconventional Wisdom: The Roberts Court’s Proper Support of Judicial Elections,” Mich. St. L. Rev. 1521 (2011).

This article explores the effects of the Roberts Court’s recent First Amendment cases on judicial elections. Arguing that the protection afforded speech rights by the Roberts Court actually promotes the independence, accountability, and quality of state court judges.