On the Cataclysm of Judicial Elections and Other Popular Anti-Democratic Myths

Abstract

In this essay, I survey the body of empirical evidence demonstrating the political efficacy of state supreme court elections, as well as the policy making role of judges and the impact of their personal preferences on judicial choice. As part of this discussion, I delineate the failed promises of judicial reform advocates about nonpartisan and retention elections, and the most recent inaccurate predictions about the consequences of Republican Party of Minnesota v. White (2002). Similarly, I discuss the current conceptual muddle impeding public dialogue whereby advocates define independence as freedom from elections and then decree that the integrity of the judiciary is being jeopardized when any form of electoral politics is present. This tautological loop tells us little without providing evidence of how these negative effects occur and with what consequence, and how any proposed solutions will correct the problem without introducing others that are worse. In this regard, I argue that discussions of reforming judicial elections should be considered within the broader framework of reforming elections generally. Concerns about the deleterious effects of money and negative tone are not limited to judicial elections. We should match solutions to problems and stop the hyperbolic tendency to insist that judicial elections end when any complication arises. Finally, I argue the need to integrate any proposed solutions with an overall assessment of what the pitfalls of the alternatives might be. In other words, advocacy should focus on the advantages and disadvantages of each system and not just on the negative aspects of judicial elections alone.