James J. Sample (Hofstra School of Law) has posted Lawyer, Candidate, Beneficiary, and Judge? Role Differentiation in Elected Judiciaries (University of Chicago Legal Forum, p. 279, 2011) on SSRN. Here is the abstract:
From 2002 to 2009, the United States Supreme Court decided three cases directly bearing on one of the most notable, or perhaps notorious, examples of American exceptionalism — state judicial elections.
First, the Court held, 5-4, in Republican Party of Minnesota v White, that a state canon prohibiting judicial candidates from announcing their views on issues “likely to come before them” failed First Amendment strict-scrutiny analysis. The juxtaposition of that holding with the White majority’s express caveat that it “neither assert[ed] nor impl[ied] that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office,” continues to spawn challenges to state judicial canons across the country, with many trial and appellate courts reaching diametrically different results.
Six years later, the Court upheld New York’s uniquely byzantine system of trial-court elections, emphasizing legislative deference and party associational rights over ballot access and voter and candidate interests.
And most recently, the Court found a due process violation where a West Virginia Supreme Court Justice refused to recuse himself from the appeal of a company whose CEO spent $3 million supporting the Justice’s campaign for the bench. The Court’s decisions occurred against the backdrop of a decade in which judicial campaign costs, campaign rhetoric, and tensions surrounding the judicial role escalated dramatically.
This Article examines the developing dialogue in response to the decisions in the lower federal courts, state courts, and state legislatures as to the questions of whether elected judges really are different from constituent officials, and if so, in what ways the law can — and cannot — protect and reinforce those differences.