Wisconsin's Supreme Court race this spring is likely to intensify the already heated national debate over judicial selection in the states. From the hyperbolic rhetoric in media reports, one would think that the very legitimacy of state courts is at stake when ignorant voters are allowed to decide whether judges should retain their jobs.
Wisconsin's The New York Times editorial board lamented last month: "Whoever ultimately gets the job, all of Wisconsin has lost. This nasty, highly politicized race is raising serious questions about the impartiality of the state's highest court."
Powerful opponents of judicial elections - which include the American Bar Association, Justice at Stake and the American Judicature Society, as well as former Supreme Court justice Sandra Day O'Connor - have spent countless hours and funds to eradicate elections.
O'Connor even campaigned on behalf of a Nevada ballot measure that would have eliminated the state's judicial elections system, appearing in television ads.
Critics tend to cloak their activity in "good government" rhetoric, arguing that the election process erodes public confidence in the courts by injecting politics into the judicial process and threatens judicial independence as judges are dependent on the public to retain their jobs.
But political scientists have been examining judicial elections for some time and have amassed considerable empirical evidence in this area. The data suggest:
Additionally, according to Gibson's data, the net effects of elections are still positive in terms of public perception of the judiciary.
Law professors Stephen Choi, Mitu Gulati and Eric Posner recently found that appointed judges not only do not perform at a higher level than elected judges in terms of opinion quality and output but also that elected judges do not appear to be less independent than appointed judges.
The authors were appropriately cautious in interpreting their findings, but any fair reading of their results suggests that elected judges are, at worst, equal to appointed judges in quality and independence.