Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals?

50 Pages Posted: 19 Oct 2009

See all articles by James L. Gibson

James L. Gibson

Washington University in St. Louis - Department of Political Science

Gregory A. Caldeira

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: October 19, 2009

Abstract

Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections – by candidates for judicial office making policy pronouncements and promises, using ads attacking their opponents (often scurrilously), and, most important, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. Since no form of political capital is more valuable to courts than institutional legitimacy, the hypothesis that campaign activities undermine judicial legitimacy must be taken quite seriously.

Our purpose in this paper is to investigate citizen perceptions of the impartiality and legitimacy of courts. We focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. We employ an experimental vignette embedded within a representative sample of West Virginians to test hypotheses about several factors that might affect perceived judicial impartiality: (1) campaign contributions and support; (2) the size of such support; (3) whether the judge accused of holding a conflict of interest withdraws from the case; and (4A) if not, whether that judge’s vote was crucial to the outcome, and (4B) if so, whether the party providing the campaign support wins or loses the lawsuit. Our theoretical objectives in this paper are to assess the determinants of citizens’ views of judicial impartiality, following earlier research on how campaigning affects such perceptions. More practically, we test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of a conflict of interest. In almost every respect, our findings are not as expected. Perhaps most important, contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the impartiality and legitimacy of the institution. We are also surprised that about one-third of the respondents are unfazed by the most conflicted circumstance our vignette imagines. We attribute that finding to the “reservoir of goodwill” enjoyed by courts and to the framing effects flowing from pre-existing loyalty to the judiciary. The processes by which citizens form and update their opinions of judges and courts are certainly complicated, but seem at least to involve pre-existing attitudes, expectations of judges, and perceptions of contextual factors, as our analysis of conditional influences demonstrates. Finally, our findings indicate that several of the assumptions of the majority in the recently decided Caperton v. Massey are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.

Suggested Citation

Gibson, James L. and Caldeira, Gregory A., Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals? (October 19, 2009). Stanford Public Law Working Paper No. 1491289, Available at SSRN: https://ssrn.com/abstract=1491289 or http://dx.doi.org/10.2139/ssrn.1491289

James L. Gibson (Contact Author)

Washington University in St. Louis - Department of Political Science ( email )

One Brookings Drive
One Brookings Drive
St. Louis, MO 63130
United States

Gregory A. Caldeira

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-2880 (Phone)
614-292-1146 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
92
Abstract Views
1,293
rank
351,645
PlumX Metrics