Judging Judicial Elections

Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections, 2015

Michigan Law Review, Vol. 114, No. 929, 2016

Emory Legal Studies Research Paper No. 16-408

22 Pages Posted: 5 May 2016

Date Written: April 1, 2016


Attacking Judges is the most comprehensive empirical assessment of judicial elections to date, right as judicial elections are under fevered criticism, and judicial campaign spending and attack advertising reach historical highs. Attacking Judges purports to debunk criticism of judicial elections with a thorough empirical analysis of judicial campaign spending, attack advertising, and election results for state supreme courts from 2002 to 2008. The book successfully undercuts overclaiming by critics of judicial elections that attack advertising demobilizes the electorate; that voters possess no substantive basis for voting on judicial candidates; and that attack advertising perniciously compromises partisan incumbents’ re-election prospects. However, the overarching portrayal of judicial elections that emerges from the book is closer to critical depictions than one would guess: the book dismisses worries about campaign spending and attack advertising in judicial elections because it demonstrates the “remarkable similarities between state supreme court elections and elections to other important offices in the United States.” Unfortunately, these remarkable similarities are, in a nutshell, the problem with judicial elections according to their critics.

We argue, once the book’s findings are coupled with our own new empirical work here on judicial elections, the resulting empirical picture cuts against the case for judicial elections rather than helping it. Our findings are based on a new dataset combining state supreme court decisions from 2008 to 2013, with data on attack advertising and information about every state supreme court justice. We find that as attack advertising in supreme court races increases in a state, the less likely justices in that state are to vote in favor of criminal defendants. In tandem with the book’s findings, our work suggests that judges are increasingly hostile to criminal defendants in criminal cases, to win re-election, as the electoral pressures of attack advertising go up in the state. Even if Attacking Judges is right that attack advertising has less impact on voters than critics imagine, attack advertising nonetheless exerts the same ultimate political pressures on judges and judicial decision making that critics anticipate.

Keywords: Judicial Elections, Judges, Judicial Behavior, Attack Advertising, Campaign Finance, Criminal Law, Sentencing

JEL Classification: K14, K42, K, C

Suggested Citation

Kang, Michael S. and Shepherd, Joanna, Judging Judicial Elections (April 1, 2016). Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections, 2015, Michigan Law Review, Vol. 114, No. 929, 2016, Emory Legal Studies Research Paper No. 16-408, Available at SSRN: https://ssrn.com/abstract=2775252

Michael S. Kang

Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Joanna Shepherd (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-8957 (Phone)

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