These three books on the judicial system address how the law evolves. While there is little direct overlap in the coverage of the books, they all discuss the development of the law from different perspectives. They amply illustrate how political considerations become incorporated in the legal decisions of courts.

Running for Judge is an edited compilation of essays on state judicial elections. Its chapters vary from traditional doctrinal analysis of the law of these elections to a variety of quantitative empirical analyses of the influences on the election process. Judicial elections obviously influence the path of the law, as different candidates may rule differently on issues that may include the constitutionality of legislative action. While state judicial elections have been much studied and debated, the book brings together a valuable series of chapters on various aspects of the process, including some insightful new findings.

The fact that some states have elections for judicial office, either for selection or retention, has been much criticized. The practice is derided as producing low-quality judges, chosen by an uninformed electorate, and yielding a judiciary committed to political ends rather than the rule of law. Yet much of the normative discussion of judicial elections has lacked any rigorous examination of its true effects. Running for Judge adds information to the active debate over the practice of judicial elections.

An important aspect of this edited volume is its consideration of the U.S. Supreme Court's decision in Republican Party of Minnesota v. White, which largely deregulated the judicial election process. States had typically restricted what candidates could say in judicial elections, with requirements grounded in the American Bar Association's (ABA) “Canons of Judicial Ethics.” Among the restrictions imposed was a prohibition on candidates' declaration of their views on disputed legal issues. While such statements might seem of particular interest to voters, the ABA and states had concern over the appearance of justice in subsequent rulings, after the candidate had publicly announced a position on the legal question. White found that such restrictions were an infringement on the free speech rights of candidates for judicial office, though it left open the possibility of some additional regulation of judicial elections.

Rachel Caufield's chapter explores “The Changing Tone of Judicial Election Campaigns as a Result of White.” She considers how various states have interpreted the Supreme Court decision, narrowly or broadly, and proceeds to examine the nature of campaign advertising. The research found a significant and interesting difference in advertising practices. The deregulatory states with a broad interpretation of White had no more pure negative advertising that those with continued stronger regulation, but it displayed a marked increase in “contrast” ads that drew distinctions between the candidates. Moreover, states with a broad interpretation were more likely to have messages about topics like qualifications and experience and less likely to feature messages about criminal justice mattes. While very preliminary, these findings suggest that White's campaign deregulation did not create an unseemly free-for-all in judicial campaigns but may have improved the electoral process, contrary to common worries.

This book also considers the partisan role in judicial elections. A number of states have judicial elections that are formally nonpartisan, without party designations on the ballot. Matthew Streb's chapter illustrates how these restrictions are circumvented by the political parties. He examines the role of parties in nonpartisan elections, ranging from candidate recruitment to fund-raising to get-out-the-vote activities, and finds a material role for the parties in nonpartisan elections, though one that is less than in partisan judicial elections.

Information for voters in state judicial elections is also a contested question. Research in the book confirms the limited press coverage of such elections, though this may improve in the wake of the White decision. Larry Baum and David Klein consider “Voter Responses to High-Visibility Judicial Elections” in a study of contested Ohio Supreme Court seats. They look at the content of advertising and who voted in these elections. While these higher-visibility judicial campaigns provoked greater voter turnout, the authors continued to caution about the relatively uninformed state of voters in these elections. Yet Melinda Gann Hall shows that state Supreme Court elections are increasingly contested and considerably more competitive than other races, such as those for the U.S. House of Representatives, especially in partisan judicial elections.

Multiple chapters of Running for Judge address questions of interest-group influence and campaign financing in judicial elections. Campaign spending in judicial elections has increased in recent years, and most of the financing for campaigns appears to come either from business interests seeking to limit the standards for tort liability or from personal injury lawyers seeking to increase those standards. While state judges rule on a vast range of issues, the key issue for those financing campaigns seems to be one of tort liability. The research on the effect of state judicial elections has focused on criminal justice questions, and a chapter by Paul Brace and Brent Boyea find, consistent with prior research, that death penalty rulings appear to be made with an eye to the electorate.

This volume provides data that offers neither condemnation nor approbation of state judicial elections but contributes to understanding the process. Perhaps the greatest shortcoming of research in this area is the lack of data on the effect of elections on issues other than death penalty questions. While prominent, these issues are a minute fraction of the agenda of state courts. The interests most concerned with judicial elections, such as trial lawyers and corporate defendants, focus on tort liability, an area that cries out for additional research. The contrast between the “true” issues in judicial elections and the “public” issues raises questions about the process. On this topic, Caufield's findings suggest that deregulation of the electoral process may actually improve the situation.

In Strategic Selection, Christine Nemacheck examines the selection of federal Supreme Court justices. This has been a burgeoning area of research in recent years, but the book provides an important contribution to the analysis and also helpful new resources. Her analysis shifts the consideration from the confirmation of presidential selections to how the president selects nominees in the first instance and how this process is affected by confirmation prospects. While this has been the subject of some anecdotal assessment, which the author reviews, she adds valuable empirical evidence to the understanding of presidential selection.

The great advance in the book is the examination of presidential “short lists” for nominations. Nemacheck searched the papers of the presidential libraries from Hoover forward and obtained lists of those considered for nomination. This enabled her first to study the role of members of Congress in placing candidates for presidential consideration. As might be expected, the consideration of a candidate is based significantly on recommendations from senators of the president's party but considerably qualified by the president's popularity at the time, which provides a measure of independence in selection. She also considers the role of the centralization or institutionalization of the presidency itself in selection.

Nemacheck's consideration of the final selection process illuminates the balancing act of presidents, between their concern for ideological affinity and concern for Senate confirmation of their nominee. As anticipated, ideological affinity between the candidate and the president is a very important factor in choices from the short list, but this factor loses significance when the opposition party controls the Senate. This salient finding reveals that senatorial influence on the Supreme Court is important in the choice of nominees, coloring the research done on Senate confirmation. The book also provides useful simulated probabilities for some presidential choices, noting, for example, how Ronald Reagan's choice of William Rehnquist might have been affected had he possessed different background characteristics.

One limitation of the research is the lack of integration of the selection of candidates for the president's short list and the ultimate choice of nominee. A Heckman two-step model could add information on the process as a whole. The research of the book could also be enhanced by integration with other recent research on Supreme Court selections. Lee Epstein and Jeffrey Segal have documented the significance of perceived qualifications in the Senate confirmation process for Supreme Court nominees (Epstein et al., “The Changing Dynamics of Senate Voting on Supreme Court Nominees,” Journal of Politics 68 [May 2006]: 296–307). Nemacheck touches on this consideration of the prospective candidates' federal court experience and political experience, though the federal court experience was not a significant determinant of selection. Assessing the overall qualifications of those on the short list is a daunting task, but it would add valuable information to our understanding of Supreme Court justice selection.

Answering the Call of the Court addresses an entirely different question about the evolution of law in the Supreme Court. Vanessa Baird examines how the Court can influence the cases brought before it. It is often suggested that the political power of the Supreme Court is limited by its inability to set its own agenda. Unlike the legislature, which can choose the issues it addresses, the Court is bounded by petitions for certiorari that it receives. It cannot freely choose the legal questions on which it rules, therefore; its power is constrained by litigant choices. The author suggests that the Court may have more influence in this process than commonly believed.

Baird suggests that the Court can cue sophisticated litigants by signaling to them a receptivity to hear matters it considers important, by creating or suppressing legal issues in its opinion. Certiorari petitions do not arise randomly, but many involve strategically chosen cases for shaping the path of the law. Sometimes, in statutory interpretation cases, the Court suggests congressional action. In other cases, including those affecting the interpretation of the Constitution, the Court sends signals about its willingness to reconsider issues, given the right “test case.” Presumably, knowledgeable interest groups respond to these signals and enable the Court to shape the law.

After considering apparent examples of this process, Baird empirically examines the agenda of the Supreme Court. For factors such as formal alterations of precedent, prominent cases, reversals, and others, the book finds a distinct increase in related cases around the fourth year after the original decision. Although one might ordinarily expect a Court set on legal change to respond immediately, in the first or second year, the dramatic effect does not occur until later.

One might believe that the Court has such a vast portfolio of certiorari petitions that cuing litigants would be unnecessary, but that is plainly not the case. The author discusses briefly the implications of her findings but elides the very dramatic implication about the constraints that the law imposes on the Court. Were justices truly just policymakers, like legislators, they would be able to take prompt action to effect their preferences, using any vehicle. However, it appears that the Court requires the right case and facts to pursue its policy agenda. This fact demonstrates the limits of its power, which is bounded by past law and case facts. Although cuing to sophisticated litigants can facilitate the Court's power, this is a slow process. The need to use this method demonstrates the significant legal constraints under which the Court operates.