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
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
1. Twenty-three states use partisan or non-
partisan elections to select appellate judges while
31 states select trial judges by elections. See CON-
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

28 Judicature Volume 73, Number I June-July, 1989

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