My Bad!: The Supreme Court’s Assault on Judicial Elections

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5 Responses

  1. “They sought a judiciary that would be accountable to the public.”

    And the thing is, it may not be perfect, and has it’s drawbacks, but electing judges actually DOES accomplish that end. You can see a difference in judicial behavior, between states with appointed and elected judges, when the interests of the populace and the government come into conflict. Judges are much more likely to take the government’s side, in states where they’re appointed by the government. The people go to the trouble of passing ballot initiatives, only to have the courts strike them down, for instance.

    It’s an unfortunate fact that you can’t eliminate bias from human behavior, you can only manage it.

  2. ohwilleke says:

    The White case was necessary if the purpose for which judicial elections were established was to be honored.

    Judicial elections were invented to encourage the election of judicial who would campaign on their likelihood of exercising their power of judicial review aggressively to find state laws unconstitutional, and judicial elections had precisely this effect.

    For the judiciary to be accountable to the public, the public must know where judicial candidates stand on the merits of legal issues that judges will decide. An election based on how efficiently judges will process dockets and what grades they got in law school is not a meaningful form of public accountability.

    The pre-White solution, which was to make judicial election a purely symbolic form of public accountability, that didn’t have any relevance to candidate policy positions, did even more disservice to the reasons behind the creation of judicial elections than the current one.

    Inherent in the concepts of judicial elections, and of political appointment of judges, is the notion that that two judges can have very different ideas about how the law should be applied by judges that flow from different political visions of the world, while still applying that worldview in an impartial matter to particular cases.

    Indeed, this sense that judges may be impartial in the ethical sense, while still implementing policy agendas, is particularly great at the state court level, where judicial discretion in sentencing and the quasi-legislative power of the judiciary to make the common law without legislative guidance, makes this awareness particularly important.

    The fact that outcomes are impacted by election is a feature and not a bug.

    Citizens United involves a general concern about our political system, but does no more harm in judicial elections than in elections for any other office. The problems it exposes are problems with the concept of judicial elections generally, not problems that White created.

  3. Mark S. Devenow says:

    “There are racial consequences to the unfettered role of money and attack ads in judicial elections as well, as black incumbents increasingly face overwhelmingly well-financed opponents, who sometimes draw on racial appeals in their campaigns. African American Supreme Court Justice Louis Butler of Wisconsin was challenged last year by an opponent whose supporters used campaign ads putting Butler’s face next to that of a black child molester, with the accusation that Butler had “found a loophole” to set the molester free.”

    Give me a break!!!!!!!!!!!!!!! States are constitutionally empowered under well settled principles of federalism to divine means by which governance within the proper ambit/sphere of state powers are organized/constituted. Accordingly,it is not a novel, or particularly strange, arrangement whereof elected state judiciaries are part of the scheme ordained by, and/or within, the federal system.

    Nor can the notion of free speech with respect to political campaigns – including campaigns for judges – , Citizens United, vel non, be regarded (in 2010 no less)as alien to our politics and what foundational documents give rise to them (First Amendment, anyone?).

    But leave it to some dizzy liberal law school professor to work a racial angle (with implicit claims of ‘sexism’ regarding the institution of elected judiciary thrown in for good measure). Is it just me or are there others out there left to wonder where this woman would be without a double dose of affirmative action to begin with?