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James L. Gibson
Washington University in St. Louis; Stellenbosch University (South Africa)
Sample size: 1050
Field period: 7/1/2009-9/17/2009
Legal scholars and political scientists have of late become quite concerned about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially state courts, and what might generally be termed the politicization of the judiciary.
The purpose of this paper is therefore to assess the degree to which a key element of this politicization – the provision of campaign support to those seeking judicial office – influences citizens' perceptions of the fairness and impartiality of the judiciary. We also investigate the effectiveness of judicial recusals rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign contributions from litigants. Based on an experimental design embedded in a nationally representative sample, our data confirm that direct contributions undermine perceptions of fairness; but so too does independent support of the candidate. Recusal does indeed restore some perceived fairness, but not to the level enjoyed when no conflicts of interest are present. In a post-Citizens United world, these findings point to significant threats to the legitimacy of elected state courts.
Campaign contributions in judicial elections create a perceived conflct-of-interet that undermines public perceptions of impartiality and judicial legitimacy.
1. Type of campaign contributions
2. Efficacy of campaign contributions
3. Whether the judge recuses from the case
4. Whether the judge's vote, if he did not recuse, is dispositive in the case.
5. Whether the contributing litigant won the lawsuit.
Perceptions of judicial impartiality and legitimacy
Many important conclusions emerge from this analysis. First, we have discovered that citizen perceptions of courts are quite sensitive to contextual factors. The vignette employed in this research was able to generate extraordinary variability in whether citizens viewed the court as fair and impartial. We therefore conclude that context matters greatly when considering whether a judge can serve as a fair and impartial arbiter.
Our second conclusion is that campaign contributions do indeed pose a significant threat to the perceived fairness of courts. We do not find that all citizens are offput by such contributions – there seems to be a core of about one-third of the American people who accept a fairly politicized judiciary (see also Gibson 2009b) – but the acceptance of contributions drives perceptions of fairness substantially downward compared to a scenario in which contributions are offered but rejected.
Perhaps more surprising, we also find that independent support of a candidate undermines fairness perceptions, although not to the degree of direct contributions. For a significant proportion of Americans, however, judges are tainted by the mere fact that a group that subsequently becomes a litigant before the court provides support for the candidate (the Caperton condition). A group with litigation in the pipeline could well create a perceived conflict of interest with an unwelcome judge simply by supporting the election/re-election of that judge to the high court. Especially in a post-Citizens United world, the possibilities for mischief that flow from these findings is substantial.
Gibson, James L., and Gregory A. Caldeira. 2010. "Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey. " Paper delivered at the Fifth Annual Conference on Empirical Legal Studies, November 5-6. 2010, Yale Law School