Citizen Knowledge and Voting in Judicial Elections

NP Lovrich, JC Pierce, CH Sheldon - Judicature, 1989 - HeinOnline
NP Lovrich, JC Pierce, CH Sheldon
Judicature, 1989HeinOnline
M uch of the literature regard-ing the most appropriate form of judicial selectionwhether
advocating the virtues of executive appointment, partisan election, merit selection or non-
partisan election-reflects often unstated assumptions 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 …
M uch of the literature regard-ing the most appropriate form of judicial selectionwhether advocating the virtues of executive appointment, partisan election, merit selection or non-partisan election-reflects often unstated assumptions 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 underlying court decisions. The bar, rival parties and individual judicial candidates are all under pressure to conduct public campaigns directed toward voter education and/or persuasion. The news media are compelled to pay attention to court affairs (at least as part of their" fourth estate" role). Responsible voters are forced to gather impressions from bar polls, newspaper editorials, voters pamphlets, interest group newsletters, etc., in order to formulate preferences forjudicial candidates in contested races. 3 The assumption underlying these mechanisms for expanding public information is that enough citizens 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 Judicial 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 dynamics of the popular election process promise little benefit and likely entail much trouble. 6 Judicial races cost increasingly more money, and campaign contributions may buy influence on the bench while promoting little if any understanding 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 recognizing these liabilities in the elective system. Advocates and detractors of an elected judiciary disagree regarding the character 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 supportive of the" uninformed voter" premise of the critics of elective judiciaries8 others report findings far more supportive
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