In the not-so-distant past, state-level judicial elections were decent, docile and dirt-cheap affairs, even if drab and dull, and scarcely deserving of being called democratic. Today, they are, as professor Roy A. Schotland of Georgetown Law Center says, nastier, noisier and costlier, meaning that attack ads have become more commonplace, campaign activity of every sort has increased dramatically and, consequently, the need for campaign contributions to finance candidates for judicial office has increased exponentially. Few observers believe that this trend toward increasingly politicized campaigns will abate anytime soon.

Three major developments have contributed to the growing politicization of judicial elections. First, state courts have become vastly more important within the American legal system. With the U.S. Supreme Court now deciding fewer than 100 cases per year, the "court of last resort" for many legal disputes is a state court. These courts are making extremely important decisions on matters ranging from massive, class-action torts to the use of the death penalty to the state's use of eminent domain. State courts have always been important in the American legal scheme; today, not only are they highly influential, but they are recognized as such by nearly all legal observers.

Because state-level courts are — and are seen as — important, interest groups have become vastly more involved with efforts to "reform" judicial selection and retention systems. Some groups are ideologically motivated, as in the Federalist Society's ongoing efforts to gain more influence for right-wing interests. Other groups, such as the U.S. Chamber of Commerce, are primarily motivated by economic interests. And some groups, including left-leaning trial lawyers, are motivated by both ideology and economics. Direct interest-group involvement in judicial elections — via, for instance, advertising in electoral campaigns -- is certainly a new feature of state judicial elections.

Added to this volatile political brew is the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White. At one level, this decision is very simple: It declared that candidates for judicial office, including incumbent judges running for re-election, are covered by the First Amendment to the U.S. Constitution. This simple declaration has myriad consequences, however. Once judicial candidates have free speech rights, it becomes vastly more difficult to regulate the content of their speeches, including speeches in which candidates announce their policy views on important legal issues. In the past, judicial candidates were largely forbidden from discussing anything remotely related to how they might rule on issues and cases that might come before their court in the future.

While the limits of judicial speech are still being litigated — few believe, for instance, that judicial speech rights will be extended to such statements as "If elected, I will vote to overturn the multibillion-dollar judgment a trial court awarded to smokers in their case against the tobacco companies" — at present, candidates for judicial office are free to announce their general views on important issues of legal policy. Constitutional protection now clearly protects such speech as "I believe the Second Amendment was designed to protect the right of individual citizens to bear arms" or "I believe that the emanations and penumbras of the Bill of Rights establish a right to privacy, a right that extends to private sexual behavior and having an abortion."

In short, judicial elections have become much more like other state elections. Candidates increasingly campaign on the basis of their policy views; they seek campaign contributions from citizens and groups to get their messages across to the voters; and they produce tawdry advertisements in which they attack the record and/or integrity of their opponents. Judicial elections have become ... elections.

What consequences flow from this new style of judicial election? Based on research I conducted in 2007, I contend that voters are emphatically not put off by policy talk from judicial candidates. Many legal scholars, judges and interest groups, however, argue quite the contrary .

Indeed, these developments have set off a flurry of complaints and concerns emanating from a variety of legal actors and groups, including Sandra Day O'Connor, the former Supreme Court justice who cast the deciding vote extending speech rights to judicial candidates (and who also cast the deciding vote in the 2000 presidential election — in Bush v. Gore). These observers believe that politicized judicial campaigns pose a serious, if not mortal, threat to the legitimacy of state judicial elections.

Those who fear that increased politicization of judicial elections threatens the legitimacy of the courts argue something like this:

Courts are inherently weak political institutions, famously lacking the power of the purse and the sword. Because courts cannot tax and spend, as legislatures can, they cannot buy the support of their constituents. Because they do not command the coercive state apparatus (i.e., the police and the military), they cannot mobilize force to ensure compliance with their decisions. All political institutions face the difficulty of getting citizens and organizations to comply with their decisions. But of all institutions, courts are the most vulnerable; judicial power is the least powerful form of power.

Because courts are weak, they require institutional legitimacy, the belief that an institution has the right to make binding decisions for a constituency and that such decisions must be complied with. Legal observers from the framers of the American Constitution onward have extolled the necessity of courts having a store of legitimacy. In many respects, legitimacy is more efficacious than purses and swords because legitimacy provides a standing presumption in favor of compliance. At the same time, however, legitimacy is far from automatic; it is contingent, and it is fragile.

A key source of legitimacy in the American judiciary, so the argument continues, is the perception of judicial impartiality. Because citizens view courts and judges as disinterested and principled decision makers, their decisions are generally accepted as legitimate. Earmarked legislation passed by Congress is perceived as fair and impartial by practically no one (except perhaps the direct beneficiaries of this duplicitous largess). Judicial decisions are different. Because judges have no stake in the outcome, they are free to decide legal issues on the merits of the case, not on the politics of the litigants, and because the decisions are principled and disinterested, they are legitimate.

The direction of this argument is now undoubtedly obvious: Politicized judicial campaigns are thought by many to impugn judicial impartiality, thereby undermining the bedrock of legitimacy, making compliance with judicial decisions less likely and more costly, and even threatening the very existence of this third branch of government. The pathway from judicial speech rights to the destruction of the judiciary is a long and tortured one, to be sure, but many see American state courts as traveling headlong down this road to ruin.

The above forecast of judicial woe and despair turns on a variety of crucial empirical assertions, the first and simplest of which is that policy pronouncements by candidates for judicial office are offensive to the American people because they view them as indicative of a loss of impartiality on the part of the judge. This is the argument of the state of Minnesota, which sought to ban policy speech by judicial candidates, and it is the argument of the dissenters in Republican Party of Minnesota v. White as well.

Is policy talk by candidates for judicial office off-putting to the American people? Remarkably little rigorous empirical research has addressed this issue, so it is perhaps useful to begin by sketching a logic by which such policy talk is not offensive.