Prejudging Judges

35 Pages Posted: 2 Mar 2006

Date Written: Fall 2005


In Republican Party v. White, the Supreme Court held unconstitutional a provision of a state judicial conduct code that purported to preclude judicial candidates from announcing their positions on disputed legal issues. The focus of attention after White has been on the decision's effects on the sphere of electing judges and elected judges, the underlying (if unspoken) assumption being that the judicial appointments process offers an alternative to judicial elections that does not raise the same problems as do judicial elections.

This Essay argues that White should be viewed in a broader context. White should not be seen solely in the context of judicial elections and elected judges; rather, it is an example of a more general trend toward prejudging judges that extends to the context of judicial appointment processes. The Justices in White, as well as commentators, erroneously assume that the problem of prospective judges speaking out on controversial issues is particular to the setting of elective judicial campaigns. In fact, counterintuitively, the problem may be greater in the setting of judicial nominations and confirmation hearings, where members of the legislature may force nominees to speak on issues by threatening otherwise to withhold favorable votes.

The broader trend toward prejudging judges warrants refocusing the debate over what the problem is and how to solve it. The trend likely reflects a societal willingness to accept an increased politicization of the judicial branch, and a shrinking conception of bias. If a politicized or biased judiciary is undesirable, we should seek ways to minimize it. If, however, the judiciary has always been and is (to a large degree) inevitably politicized and biased, and the problem is that only now is the public perceiving it that way, then perhaps perception should be allowed to persist in order to focus attention and dialog on the actual politicization or bias that is the real problem.

Further, to the extent that the problem is worse in the setting of judicial appointments than in the setting of judicial elections, the existence of elections for some judicial posts may be the best way to restrain judicial appointments processes. The restraints that judicial candidates voluntarily impose on themselves may influence members of the political branches who question judicial nominees and prospective nominees under an appointments system.

Suggested Citation

Nash, Jonathan, Prejudging Judges (Fall 2005). Columbia Public Law Research Paper No. 06-100, Tulane Public Law Research Paper No. 06-01, Available at SSRN: or

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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