David Pozen (Yale Law School) has posted The Irony of Judicial Elections (Columbia Law Review, Vol. 108, No. 2, 2008) on SSRN. Here is the abstract:
Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.
This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries. In revisiting this classic debate, the Article aims to make three main contributions. First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones. Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.
Third, the Article explores several deep ironies that emerge from this cleavage. Underlying these ironies is a common insight: As judicial elections achieve greater legitimacy as elections, it will tend to undermine the judiciary's distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.
And here is some more from the text:
Speech plays a similarly paradoxical role in judicial elections. A related axiom of democratic and legal theory is that open, issue-based dialogue serves to augment the quality and legitimacy of popular elections. Certain normative theories of democracy, such as deliberative theories, see in this dialogue the very core of what makes democracy attractive. Against this axiom, the old model of judicial elections would likewise receive failing marks. Candidates were sanctioned for coining slogans such as “Friend of the Working Man” or “Fighter for Civil Rights” because these slogans were considered too suggestive.187 Yet by masking the true beliefs of candidates, the old model helped to preserve judicial impartiality—sitting judges did not feel bound to abide by their campaign positions because they never took any—and it helped to abate the majoritarian difficulty by limiting candidates’ ability to appeal to popular sentiment or to criticize incumbents.
Consider, in light of this tension, the question of whether states should encourage candidates who have advanced sufficiently far in an election to face each other in a public debate. With legislative and executive contests, I suspect that almost all of the accommodationist groups would support such debates as a vehicle for increasing public participation, informing voters about the candidates’ substantive positions, and correcting, to an extent, for possible distortions created by money differentials, manipulative advertising, and mass media characterizations. But one almost never hears these groups call for debates in the judicial context.188 Any manner of substantive discourse is threatening to the accommodationist. As judicial elections have finally come to feature wide-open competition and speech, it has brought to the surface just how awkward it always was for the accommodationist to condition her approval of judicial elections on their inversion of basic democratic principles. The old model’s delicate balance between the fears of accommodationists and the goals of election advocates looks less like a compromise and more like a contradiction.
Highly recommended.
