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Attacking Judges
How Campaign Advertising Influences State Supreme Court Elections
By Melinda Gann Hall STANFORD UNIVERSITY PRESS
Copyright © 2015 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-9309-4
CHAPTER 1
Attacking Judges
Another Dimension of Campaign Negativity in American Politics
ONE OF THE MOST NOTABLE AND WORRISOME TRENDS IN contemporary American campaign politics is the rise of televised attack advertising. Going far beyond traditional measures to promote candidates or draw distinctions among them, these nasty, below-the-belt campaigns have raised concerns from some political scientists and other astute observers that such rancor may have deleterious consequences for representative democracy. Stated effectively by West (2010: 70), attack ads in contemporary democracy are thought by many to be "the electronic equivalent of the plague."
Nowhere are these misgivings being expressed more vociferously than in the context of state judiciaries by the nation's most distinguished court reform organizations and an almost singular voice in the legal community. Convinced that judges and courts "are being jeopardized by the corrosive effects of money in judicial election campaigns" and by "attack advertising calculated to persuade a majority of the electorate that incumbent judges should be removed from office," the American Bar Association (2003: 102) now is advocating that the thirty-eight states currently using elections to staff their state court benches end the practice altogether. Taking a somewhat more moderate stance is retired U.S. Supreme Court Justice Sandra Day O'Connor, who in an extraordinary level of political activism during a post-Court career, is vigorously campaigning against contestable elections. These high-profile actors are merely the tip of the iceberg of the opposition to judicial elections in their contemporary form among legal practitioners, legal scholars, and the interest groups who serve them.
Driving this movement to alter state judicial selection practices are two recent transformations in state supreme court election campaigns. First is the emergence of television campaign advertising on a nationwide scale beginning in 2002 (e.g., Brandenburg and Schotland 2008; Goldberg et al. 2005; Sample, Jones, and Weiss 2007). Although information about the scope and content of campaign advertising was not gathered in any systematic way before the Brennan Center for Justice and the University of Wisconsin Advertising Project began to capture and code televised advertising in state supreme court elections in 2000, these messages have become the norm in contested elections across the nation over the past decade and now play a central role in many judicial elections.
Second are fundamental revisions in the rules of campaign engagement brought about by the U.S. Supreme Court's decision in Republican Party of Minnesota v. White (2002). In this landmark case, the Supreme Court invalidated "announce clauses" in state judicial codes of conduct that prevented candidates for judgeships from expressing their views on disputed legal or political issues. Although state supreme court elections have been competitive for decades (e.g., Dubois 1980; M. G. Hall 2001a, 2007a, 2011; Kritzer 2011, forthcoming) and in some states always have been "political" in tone (e.g., Dubois 1980; K. Hall 1984, 2005; M. G. Hall 2001a, 2007a, 2011; Kritzer 2011), judicial campaigns in other states prior to White were issue- free, low-information events by design. However, White changed the electoral game by opening the door in all states to issue-based discourse, including attack advertising that can be part of aggressive, well-financed campaigns.
These recent developments only exacerbated criticisms that initially began to heighten in the 1980s as judicial elections were becoming "noisier, nastier, and costlier" (Schotland 1985: 78), trends that inspired a "blizzard of commentary" (Gibson 2008: 60) and a multitude of law review articles over the past several decades about "why judicial elections stink" (Geyh 2003: 43). But as Gibson (2009: 1285) aptly observed, "It is puzzling that observers are so certain of the consequences of electioneering ... given that the scientific evidence of such effects is so scant." Indeed, while empirical scholarship on state supreme courts and judicial behavior within these institutions is advanced and complex, few studies have investigated the exact nature of these campaigns or their effects on judges, courts, and state citizenries.
This project helps to address this deficiency by taking a theoretically grounded empirical look at the effects of television advertising, including harsh attacks targeting incumbents, on two key aspects of state supreme court elections: the vote shares of justices seeking reelection and the propensity of the electorate to vote. As will be discussed in considerable detail in the following chapters, a burgeoning body of political science scholarship has investigated whether campaign negativity has harmful effects on candidate preference and citizen participation in legislative and executive elections, in response to rather alarming predictions about the toxic consequences of televised attacks. In this project, I examine these contentions within the context of state supreme courts.
As a prelude to this analysis, I provide an empirical description of state supreme court elections over the past several decades, with an emphasis on trends in the competitiveness of these races. In this regard, I test the hypothesis that the White decision and other aspects of highly competitive campaigns have altered key features of state supreme court elections in recent years. Similarly, I describe televised advertising in state supreme court elections, including the content, scope, and sponsors of attacks and other issue-based appeals. As with campaign politics generally, legal scholars and judicial reform advocates are deeply skeptical of the capacity for campaigns to provide meaningful information about candidates. As Brandenburg and Schotland (2008: 1241–1242) opine, "Unfortunately, TV ads are as likely to educate voters about judicial qualifications as they are to provide nutritional information about french fries." This study provides a systematic examination of this contention.
Generally, there are two compelling reasons to think that the concerns expressed by the American Bar Association, other reform organizations, and the legal academy about negativity in judicial elections may be merited. First, the legitimacy of judges may depend to some extent on an image of impartiality (e.g., Gibson 2008, 2009). Thus, negative advertising explicitly designed to disparage judges and their choices may have especially adverse effects in judicial elections. Second, many states do not list the partisan affiliations of judicial candidates on the ballot, thereby removing the most valuable heuristic in American elections. In these races, campaign messages, including scathing and repeated attacks, may constitute much of the information available to voters and thus may be a strong force in shaping the electoral fates of incumbents and the willingness of citizens to vote.
Alternatively, a theoretically sophisticated body of political science scholarship on campaign negativity in congressional and presidential elections predicts neutral or positive effects of these controversial messages. Though certainly not without contradiction (e.g., Ansolabehere et al. 1994; Ansolabehere and Iyengar 1995; Fridkin and Kenney 2011; Kahn and Kenney 1999), empirical evidence largely discounts the effectiveness of attack advertising in swaying voters (e.g., Lau et al. 1999; Lau, Sigelman, and Rovner 2007) or demobilizing the electorate (e.g., Brooks and Geer 2007; Finkel and Geer 1998; Jackson and Carsey 2007). In fact, quite a few studies (e.g., Finkel and Geer 1998; Jackson and Carsey 2007; Lau and Pomper 2001) show that negative ads increase voter turnout in some races.
Though currently lacking assessments of the direct effects of televised campaign messages in these races, empirical scholarship on state supreme courts likewise has documented that rather than being alienated by aggressive campaigns, the electorate is mobilized to vote by the very factors that intensify these races, especially partisan elections, hotly contested seats, and over-the-top spending (e.g., Baum and Klein 2007; Bonneau and M. G. Hall 2009; M. G. Hall 2007b; M. G. Hall and Bonneau 2008, 2013; Hojnacki and Baum 1992; Klein and Baum 2001). Generally, extant scholarship has failed to identify any observable behavioral manifestations of a disaffected electorate stemming from highly contentious races, at least in the form of the willingness to vote.
In short, a deep disjunction is evidenced between the assumptions underlying legal advocacy and much of the empirical evidence generated in studies of elections, including state supreme court elections. To bridge this gap, this research evaluates these two competing perspectives by capitalizing on the solid theoretical foundations of the scholarship on U.S. campaigns and elections and the analytical leverage of comparative research designs. Specifically, I examine all supreme court elections from 2002 through 2008 in the twenty-two states using partisan and nonpartisan elections to staff their highest courts. Although this study will provide a wealth of information about state supreme court elections and the campaigns of incumbents and challengers, five primary sets of questions are explored:
1. How competitive are state supreme court elections, and have the fundamental features of these races been transformed in the post-White era?
2. What is the exact nature and extent of televised campaign broadcasting?
3. Does the tone of broadcast advertising sway voters about candidates?
4. Does campaign negativity dampen citizen participation?
5. Are any impacts of campaign advertising contingent on the presence or absence of partisan ballots?
The Comparative Advantage of State Supreme Court Elections
State supreme court elections present an outstanding opportunity for systematic comparative inquiry into the question of how political institutions shape the impact of campaigns and mass electoral behavior, two of the discipline's most abiding concerns. Across the states, both partisan and nonpartisan ballots are used in supreme court elections, reflecting institutional variation that typically does not exist for other national or statewide offices in the United States. Likewise, judicial elections are low-salience, low-information events relative to many other important elections, including presidential, senatorial, and gubernatorial races. Assessing the effects of attack advertising and other campaign messages in these alternative contexts using single models that control for the wide range of other forces affecting elections can provide much needed insight into the role played by institutional arrangements and other contextual forces in democratic politics. This seems especially important given the relative inattention in the scientific literature to nonpartisan elections, despite their widespread use in many state and local elections across the nation (Schaffner, Streb, and Wright 2001).
As the results of this analysis will show, although the political controversy over electing judges is enormously complex and largely normative, the theoretical and empirical story about the impact of negativity in judicial campaigns is straightforward. Partisan state supreme court elections in many respects resemble their legislative and executive counterparts and present a striking challenge to the notion that this new era of intense televised campaigning necessarily threatens incumbents or weakens the participatory proclivities of the electorate. Generally speaking, partisan ballots and other institutional arrangements insulate supreme court justices and state citizenries from any adverse effects of short-lived events like televised attack ads.
However, when partisan labels are removed from ballots, campaigns have pronounced consequences. On the positive side, attack advertising and other factors related to aggressive competition increase voter participation in nonpartisan elections. In fact, in nonpartisan and partisan state supreme court elections, there is no evidence whatsoever that attack advertising is a demobilizing force.
On the negative side from the perspective of the advocacy literature, attack advertising serves to attenuate the incumbency advantage in nonpartisan elections. Although nonpartisan elections were adopted as a reform to insulate judges from external political events, removing partisan labels creates a strategic contingency within which some of the most damaging consequences of negative advertising can manifest. In short, nonpartisan elections render some of the most serious concerns about caustic campaigns into self-fulfilling prophecies.
A theoretical perspective drawn from neoinstitutionalism explains these results. Nonpartisan judicial elections are influenced to a greater extent by hard-fought campaigns not because courts are intrinsically different from the other branches but because nonpartisan elections alter the rules of the game. These deliberate choices made by states about selection and retention mechanisms not only define the fundamental rules under which elections operate but also create alternative strategic contingencies that structure the manner in which voters receive and use information and the extent to which incumbents are insulated from external political forces. With regard to legal advocacy, court reformers are partially right about the harmful effects of negativity but for the wrong reasons. Through the lens of political science, those predicting the pernicious effects of negativity (e.g., Ansolabehere et al. 1994; Ansolabehere and Iyengar 1995) missed the institutions and the processes to which their arguments best apply.
The implications of this inquiry are significant. Understanding linkages between citizens and government is basic to a science of politics. By assessing judicial elections comparatively with a focus on the exact nature of the campaign messages broadcast to voters, this analysis helps to improve the current state of knowledge about judicial elections while facilitating the development of theory that captures the realities of these contests. Through the lens of democratic theory and the science of judging, ascertaining how citizens are drawn into the electoral arena and how voters select among candidates is essential for building theories of judicial choice that accurately reflect the complex task of balancing pressures from democratic processes with norms of judicial independence. Looking beyond the judiciary, this study helps to refine existing accounts of electoral politics, particularly with respect to ways in which institutional arrangements, especially the presence or absence of partisan ballots, shape citizen behavior.
The Practical Politics of Judicial Selection
From a practical perspective, this work helps to inform the debate about how best to select judges. Since 1960, twelve states have abandoned partisan elections for selecting their highest courts in favor of gubernatorial appointment plans, nonpartisan elections, or the Missouri Plan, which combines initial executive appointment with subsequent retention elections. Another six states jettisoned nonpartisan elections for the Missouri Plan. In addition to the current claims about the harmful effects of campaign politics, reform advocates have asserted for decades that partisan elections are highly undesirable and should be replaced with other selection schemes.
Especially central to the initial case against partisan elections but still mentioned in the contemporary debate is the claim that judicial elections fail to achieve their goal of accountability, evidenced in part by purportedly incompetent voters and a widespread lack of participation. The conventional wisdom (e.g., Dubois 1980; Schotland 1985), based largely on anecdotal evidence, is that voters "know nothing and care less" (Dubois 1980: 36), are plagued by "ignorance, apathy, and incapacity" (Geyh 2003: 63), are "only slightly affected" by close contests (Adamany and Dubois 1976: 743), and attach "limited importance to the work of the judicial branch of government" and thus decline to vote (National Center for State Courts 2002: 38). Geyh (2003: 76) summarizes the overall argument succinctly: "Judicial elections promote accountability so poorly that the minimal gains they engender on that score are offset by the losses to independence they cause."
(Continues...)
Excerpted from Attacking Judges by Melinda Gann Hall. Copyright © 2015 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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