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73 Judicature 28 (1989-1990)
Citizen Knowledge and Voting in Judicial Elections

handle is hein.journals/judica73 and id is 30 raw text is: Citizen knowledge and voting in judicial elections As suggested by a recent study, those with an interest in public affairs and actual knowledge of the courts are most likely to vote in judicial elections. Efforts to inform and influence such voters are not wasted. by Nicholas P. Lovrich, John C. Pierce and Charles H. Sheldon M uch of the literature regard- ing the most appropriate form of judicial selection- whether advocating the vir- tues of executive appointment, partisan election, merit selection or non-partisan election-reflects often unstated assump- tions regarding the character of judicial electorates. Defenders of partisan and non-partisan elections, which together predominate in the American states,' uniformly focus on the contribution to democratic accountability resulting from elective judiciaries.2 They tend to argue that the threat of popular election creates powerful incentives for informing voters on matters of court management, court powers and the general principles under- lying court decisions. The bar, rival parties and individual judicial candidates are all under pressure to conduct public campaigns directed toward voter education and/or persua- sion. The news media are compelled to pay attention to court affairs (at least as part of their fourth estate role). Re- sponsible voters are forced to gather impressions from bar polls, newspaper editorials, voters pamphlets, interest group newsletters, etc., in order to formu- late preferences forjudicial candidates in contested races.3 The assumption under- lying these mechanisms for expanding public information is that enough citi- zens are sufficiently discerning to result in the selection of wise and honorable persons to positions on the bench. Critics of elective judiciaries typically highlight the desideratum of judicial independence. They question how it is possible for judges to remain objective and impartial in settling disputes when they know that past campaign support or future campaign challenges oblige them to decide in a particular self-protective way.' Critics note that the Code of Judi- cial Conduct requires judges to eschew blatant politicking and to strive instead to uphold the demeanor of judicial office by narrowing judicial campaigning to questions of background experience and appropriate training.' Those suspicious of elective judiciaries point to examples such as the California anti-Bird election, arguing that the dy- namics of the popular election process promise little benefit and likely entail much trouble.6 Judicial races cost increas- ingly more money, and campaign con- tributions may buy influence on the bench while promoting little if any un- derstanding among voters.7 Because such elections discourage judicial candidates from speaking frankly to the issues, they tend to involve either the extremes of issueless politics or of would-bejudges demeaning the bench by engaging in unseemly back-alley politics. At base, of course, is the general view that the voters by-and-large are incapable of recogniz- ing these liabilities in the elective system. Advocates and detractors of an elected judiciary disagree regarding the charac- ter of citizen voters. While detractors operate from the premise that citizens are ill-prepared to make meaningful choices in judicial elections, advocates view the voters, in aggregate, as smart enough and wise enough to pick good candidates most of the time. While many studies have reported evidence suppor- tive of the uninformed voter premise of the critics of elective judiciaries8 oth- ers report findings far more supportive This article is a revision of a paper delivered at the 1988 Annual Meeting of the Western Political Sci- ence Association held in San Francisco, March 10-12. 1. Twenty-three states use partisan or non- partisan elections to select appellate judges while 31 states select trial judges by elections. See CON- FERENCE OF STATE COURT ADMINISTRATORS, STATE COURT ORGANIZATION, 1987 (Williamsburg: Na- tional Center for State Courts, 1988). 2. Wasby, Accountability of Courts in Greer, Hedlund & Gibson (eds.) ACCOUNTABILITY IN URBAN SOCIETY (Beverly Hills: Sage, 1978). 3. Volcansek, An Exploration of the Judicial Elections Process, 34 WEST. POL. Q. 572 (1981). 4. Wold and Culver, The defeat of California justices: the campaign, the electorate, and the issue of judicial accountability, 70 JUDICATURE 348(1987). 5. See especially Canon 7 of the Code which commands: A Judge Should Refrain from Politi- cal Activity Inappropriate to His [Her] Judicial Office. See also Utter, Selection and Tenure: A Judge's Perspective, 48 WASi. L. REV. 839 (1973). But see Utter's recent comments in Changes in code of judicial conduct, judicial campaigns and alco- hol abuse among topics debated at 11th National Conference, 72 JUDICATURE 185, 187 (1988). 6. Grodin, Judicial elections: the California experience, 70 JUDICATURE 365 (1987). 7. Schotland, Elective Judges' Campaign Fi- nancing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J.L. & POL. 57 (1985). 28 Judicature Volume 73, Number I June-July, 1989

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