In the forthcoming issue of Judicature, there is a symposium on James L. Gibson’s new book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy. The commentators, Sara Benesh, Robert Hume, Matt Streb, and Lee Epstein, all sing the praises of Gibson’s latest work and discuss a number of issues regarding judicial elections and relate them to his findings. Interestingly, both Epstein and Streb wonder about a potential equal protection problem. I find their concerns intriguing from the standpoint of constitutional law and judicial politics.
Essentially, the argument stems from research revealing a tendency for elected judges to vote more harshly in some areas than others (the death penalty is the most cited and obvious case) and to vote more or less harshly depending on where in the electoral cycle the case is inserted. Gibson finds these arguments specious; judges will make different decisions and no one is guaranteed the same outcome for the same crime in the district. Two judges will likely handle the matter differently. Additionally, there are many reasons why a judge might be harsher on some crimes or defendants at one point in time than another. After a series of particularly violent crimes or high profile thefts, a judge might sentence defendants convicted of similar crimes differently to set an example.
Gibson is correct that there are infinite reasons why different judges may behave differently or the same judge may behave dissimilarly at different points in time. The issue or concern is more than judges behaving differently or a judge reacting to the political context surrounding a crime or string of crimes. I am sure after the massive Enron fraud or the Madoff ponzi scheme was uncovered and the damages to individuals made headlines, many judges were a bit harder when sentencing similar defendants. I am also sure no one would quibble with such a discrepancy in judicial behavior—all of our decisions are affected by context. However, a systematic and predictable pattern of changes in judicial decision-making related to the timing of elections may be a horse of a different color. If judges make calculated choices to treat similar defendants differently simply because the case happens to appear on their docket two months prior, rather than two months after, their next election, the reaction is one of self-interest. Altering behavior because an external stimulus forces a re-evaluation of values—for judges and layfolk alike—is not the same as calculating an abrupt shift simply because of an upcoming retention or general election. The election stimulus is unrelated to the facts of the case or the crime committed unlike a high profile scandal revealing a need for stricter sentencing. Such behavior is expected among other elected politicians—legislators or executive branch officials, but as Gibson’s new book and the symposium highlight, the judicial branch must be concerned with its legitimacy, perceptions of fairness, and due process. To the extent that judges behave like politicians, they could undermine the strength of public perceptions of legitimacy and fairness,
Even so, is the finding that there is a cycle of decision-making related to electoral necessity grounds for claiming either a due process or equal protection violation? The trial doesn’t change and the institutional and constitutional rules still apply. The sentence, albeit harsher, is not necessarily out of the bounds of regular practice. And the claim that one sentence is harsher than another due to proximity to an election would be much harder to prove and receive a different level of scrutiny than a claim that sentence length is due to race or gender.
The concern is real. Regardless of the debate between accountability and independence, and regardless of how judges make their decisions (based upon ideology, constituent preferences, etc.), we do and should expect those decisions to be consistent and stable. But I do not see any way we can argue that such results are constitutionally guaranteed.
 Chicago, IL: University of Chicago Press, 2012
 Gibson’s book argues that judicial elections do not undermine legitimacy; rather, judicial elections may actually boost it.