The Irony of Judicial Elections
66 Pages Posted: 5 Dec 2007 Last revised: 18 Apr 2008
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.
Finally, 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, they will increasingly 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.
Keywords: judicial elections, judicial selection, judicial review, judicial activism, campaign conduct canons, state courts, majoritarian difficulty, popular constitutionalism, Republican Party of Minnesota v. White
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