Legal Values and Political Process: the Conflict of Norms in ... PPW Judicial... · Web viewBruce...

Political Representation on the Courts: the Question of Judicial Elections

Although judges are expositors of the law, in the United States they are selected through

processes which are highly politicized in comparison with those of many other countries. All

federal judges are political appointees. They are selected, not by legal professionals or

independent appointment commissions, but entirely by legislators. The vast majority of state

judges are either elected or subject to retention elections.1 The emphasis that American judicial

selection systems place on transparent responsibility to the public is exceptional in the world.2

That emphasis can be explained by reference to the value of political representation. In the

American legal system, many judges are representatives of the people as well as legal

interpreters.

1 38 states have elective judiciaries. For a list of these see Melinda Gann Hall, “Voluntary Retirements from State Supreme Courts: Assessing Democratic Pressures to Relinquish the Bench,” The Journal of Politics, Vol. 63, No. 4. (2001), 1114 fn1.2 Judges in civil law countries are typically career judges whose training emphasizes technical competence, not broader jurisprudential issues, and who are selected according to their qualifications as evaluated by professionals higher on the career ladder. But even in countries with common law traditions, like Britain, Canada, and Australia, the selection of judges is far less transparently political because single institutions enjoy more deference than in the American case. For example, in Australia and Canada, the prime minister and cabinet appoint judges single-handedly. In the UK, an independent Judicial Appointments Commission now nominates jurists who are then appointed by Parliament. Processes for selecting the members of Constitutional courts in civil law countries do allow for political parties to play decisive roles in judicial selection, in accordance with the need for political representation on those courts. See chapter 6, “Courts and Constitutionalism,” Vicki C. Jackson, Mark Tushnet (eds.) Comparative Constitutional Law (New York: Foundation Press, 1999). As far as judicial elections, it may be that only Japan and Switzerland have anything like the elective judiciaries we have in the states. In Japan, high-court judges must stand for a single re-election after appointment, and they are unopposed. In Switzerland some judges of canton courts are elected. See Stephen P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” The University of Chicago Law Review 62:2 (1995), 794, fn3.For discussion on partisan entrenchment in the US judiciary, see Joel Silbey, The American Political Nation, 1838-1893 (Stanford, CA: Stanford University Press, 1991), 191. For a discussion on why a transparently politicized selection mechanism might be desirable in the US context, see Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891,” The American Political Science Review, Vol. 96, No. 3. (2002), pp. 511-524.

Zeisberg Judicial Elections February 28, 2006

Supporters of judicial elections often base their advocacy on a point about political

representation: elections are unique for their special capacity to represent the people. During

Wisconsin’s constitutional convention, some believed that “an elective judiciary is not only in

accordance with the theory . . . of our government; it is in harmony with its spirit and genius.”3

Critics of judicial elections, on the other hand, argue against elections because they may

inappropriately limit the achievement and expression of the legal values.4 Some of the most

important qualities for a jurist include impartiality, integrity, the capacity to decide cases on the

basis of public-regarding reasons, a reticence to decide cases on the basis of large political

abstractions rather than the particularities of the case, and a professional, non-combative

3 Text of the Judiciary Committee Report, Journal of the Convention to form a Constitution for the State of Wisconsin: Begun and Held at Madison, on the Fifth Day of October, 1846 (Beriah Brown, 1847) 109-10, as cited in Stephen P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” The University of Chicago Law Review 62:2 (1995), 718. For contemporary defenders who make the representational point, see Michael R. Dimino, “Judicial Elections Versus Merit Selection: The Futile Quest for a System of Judicial “Merit” Selection,” 67 Alb. L. Rev. 803 (2004); Philip L. Dubois, “The Politics of Innovation in State Courts: The Merit Plan of Judicial Selection,” Publius: The Journal of Federalism (1990) at 52; The Federalist Society’s Judicial Elections White Paper Task Force, “Judicial Selection White Papers: The Case for Partisan Judicial Elections” 33 U. Tol. L. Rev. 393 2001-2002, 408; Lino A. Graglia, “Restrictions on Judicial Election Campaign Speech: Silencing Criticism of Liberal Activism,” Social Philosophy and Policy 21:2 (2004); Mathew Manweller, “The ‘Angriest Crocodile’: Information Costs, Direct Democracy Activists, and the Politicization of State Judicial Elections,” State and Local Government Review (2005).4 Lawrence H. Averill, Jr., “Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas,” University of Arkansas at Little Rock Law Journal 17 (1995); Stephen B. Bright, Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” 75 B.U.L. Rev. 760 (1995); Steven P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” University of Chicago Law Review 62 (1995); Paul J. De Muniz, “Judicial Elections versus Merit Selection: Eroding the Public’s Confidence in Judicial Impartiality: First Amendment Federal Jurisprudence and Special Interest Financing of Judicial Campaigns,” 67 Albany Law Review 763 (2004); Marie A. Failinger, “Judicial Elections versus Merit Selection: Virtuous Judges and Electoral Politics: A Contradiction?” Albany Law Review 67 (2004); The Federalist Society’s Judicial Appointments White Paper Task Force, “Judicial Selection White Papers: The Case for Judicial Appointments” 33 U. Tol. L. Rev. 393 2001-2002; Alexander Hamilton, Federalist 78 (Clinton Rossiter, ed., 1961); Penny J. White, “It's a Wonderful Life, or is It? America Without Judicial Independence,” 27 U. Mem. L. Rev. 1 (1996). In a different context, Ronald Dworkin argues that “decisions about rights against the majority are not issues that in fairness ought to be left to the majority.” Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), 142.

2


temperament.5 But elections may favor the selection of judges who are partial, indebted to

significant interests, combative, and politically invested, perhaps even to the point where their

capacity to adjudicate neutrally between parties is impaired. Worries about political partiality

have led states towards distinctive kinds of electoral design for judicial races, and these worries

sometimes even lead to the removal of elected judges from hearing particular cases, as happened

recently in Texas, where an elected district judge was prevented from judging in the Tom Delay

criminal conspiracy and money laundering case.6 But, although critics oppose elections as

inappropriately antagonistic to the ‘legal’ values, they do not contest the representational point.

Does a concern for the value of political representation for the judiciary mean that we are

driven towards embracing judicial elections as a selection mechanism for judges? This article

argues not. While bracketing the concern about the legal values, I argue against judicial elections

on what is usually thought to be their most promising terrain: the grounds of political

representation. In fact, one significant problem with judicial elections is that, no matter how they

are structured, they are a poor institutional mechanism for capturing the judgment of the people

on legal matters.

I move through this claim in several parts. First, I explore the Supreme Court’s own

reasoning on judicial elections in Minnesota v. White. Arguing solely from the value of

impartiality, almost all of the opinions of that case either concede or fail to engage the point about

5 See Sunstein (1999). Henry Abraham’s list of six minimum qualities for a Supreme Court nominee is broadly accepted as a valid way of identifying competent judges in general: he lists temperament, professional expertise and competence, personal and professional integrity, an able and lucid mind, appropriate training, and the ability to communicate clearly. Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (New and revised edition; Landham, MD: Rowman & Littlefield Publishers, Inc., 1999), 2. Sheldon Goldman added “neutrality as to the parties in litigation,” or “ability to handle judicial power sensibly.” Sheldon Goldman, “Judicial Selection and the Qualities that Make a ‘Good’ Judge,” Annals of the American Academy of Social and Political Science 462 (July 1982): 113-14, as cited in Abraham (1999), 1. 6 Ralph Blumenthal, “Judge in DeLay Case Is Ordered to Recuse Himself,” The New York Times (November 2, 2005). The judge had contributed to Democratic organizations, a not uncommon practice for elected officials. See also Josh Clubb, “Campaign Speech Above All: Republican Party of Minnesota v. White and its Impact on Motions to Disqualify Judges,” 42 Brandeis L.J. 129 (2003)

3


political representation that is at the heart of the dilemma about judicial elections. I then argue for

the value of a representative judiciary, but emphasize some of the well-known deficiencies

associated with elections that render them problematic instruments for actually achieving

representation in this context. Judicial elections, no matter how they are constructed, simply do

not create adequate institutional conditions for the people to come to a judgment on matters of

legal meaning.

I. Minnesota v. White

The US Supreme Court has itself reflected on the value of judicial elections in Minnesota

v. White (2002). The case is important in its own right, as it presages significant transformations

in judicial selection practices throughout the states. But it is also an important public statement

that reveals the extent to which the equation between elections and political representation is

assumed, even by critics of judicial elections.

In White, the Court narrowly decided that speech codes governing what judicial

candidates may say during an electoral campaign are unconstitutional.7 Speech codes, like non-

partisan elections and retention elections, are efforts to structure judicial elections in service of

the values of impartiality and neutrality. Dealing head-on with the difficulty of achieving judicial

impartiality within the context of political contestation that is characteristic of elections, the

opinions of that case provide a compelling starting point for understanding the limitations of a

perspective which too easily accepts the notion that the requirements of judicial impartiality and

of political representation are at odds with one another.

Minnesota v. White raised the question of whether Minnesota could limit the speech of

judicial candidates. Minnesota placed a value on a representative judiciary, and believed judicial

7 Republican Party of Minnesota, et al. v. White, Chairperson, Minnesota Board of Judicial Standards, et al., 536 U.S. 765 (2002). Nearly all states with elective judiciaries restrict, in one way or another, what judges may say during a campaign. See Paul J. De Muniz, “Eroding the Public’s Confidence in Judicial Impartiality: First Amendment Federal Jurisprudence and Special Interest Financing of Judicial Campaigns,” Albany Law Review 67 (2004): 766.

4


elections to be a defensible way of achieving that value. But Minnesota also had sought to restrict

candidates’ campaign speech to bar their making promises, or announcing their “views on

disputed legal or political issues.”8 Minnesota justified these constraints according to the state’s

interest in maintaining an impartial judiciary. It was thought that an election process in which

judges committed themselves to certain courses of action, or debated each other about cases and

issues likely to come before the Court, would be a process which undermined the capacity of the

selected judges to decide according to the facts of the particular case.

Scalia’s majority opinion decided the question on the basis of two straightforward

arguments: one, about the meaning and function of elections, and the other on the meaning of the

First Amendment. Minnesota’s announce clause, Scalia argued, was tailored to make it

impossible for voters to distinguish the candidates from one another on the basis of their political

differences—or at least on the basis of those political differences that most matter for the judicial

office. But the very point of an election is precisely to allow voters to come to judgments about

how particular officials should conduct themselves, and in service of what values. Judicial

elections are like every other election in this regard. The meaning of an election is that offices

shall be filled by candidates who can represent the public on the issues he is likely to engage. To

achieve this goal in a judicial election, as in any other election, voters must be able to make

distinctions between judges on the basis of a complete understanding of their judicial

philosophies. Such knowledge is a necessary part of exercising a responsible vote. And, although

Minnesota’s code would allow candidates to announce their “judicial philosophies,” Scalia

rightly points out that such designations are meaningless if candidates cannot discuss the meaning

of those philosophies in reference to particular cases and issues. Hence he argued that speech

codes vitiated the entire point of the election mechanism itself. In addition, since political speech

8 Minnesota Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000), as cited in Scalia, J., Minnesota v. White (majority opinion).

5


is the core of First Amendment speech protection, Scalia reasoned that the Minnesota code was

unconstitutional.9

O’Connor’s concurrence emphasized that the decision against speech codes was a

straightforward obligation of the Court to protect the political speech at the core of the First

Amendment. But O’Connor seemed to recognize, more than Scalia, the difficulty of the problem

Minnesota faced. The value of judicial impartiality does not fade away simply because candidates

must be protected by the First Amendment. O’Connor’s solution for Minnesota was to design its

selection mechanism solely around the value of impartiality, abolishing judicial elections. For

O’Connor, it is “the very practice of electing judges” that undermines impartiality, and so the

problem of partiality was one that Minnesota had “brought upon itself by continuing the process

of popularly electing judges.” Because of this, she found the restriction of judicial campaign

speech “particularly troubling.”10 Failing to engage the concern about representation, O’Connor

decided the case on the basis of a straightforward First Amendment analysis and recommended

the redesign of the selection mechanism around another value-- impartiality instead of popular

representation.

Ginsburg’s opinion provides the context for understanding why properly-structured

judicial elections might be thought to be so valuable. Ginsburg denied Scalia’s assertion that

judicial elections are just like other elections. She also refused to ignore the important value of

political representation that Minnesota believed to be at stake in its adoption of the electoral

selection system, the concern that “the people” be allowed to select its magistrates.11 Ginsburg

rather sought to “differentiate elections for political offices, in which the First Amendment holds

9 Scalia could have taken his argument further. Exactly what kind of speech was subject to the speech code was confusing, and the Justices offered conflicting answers on whether announcing one’s ‘judicial philosophy,’ for example, would be allowable. This vagueness itself creates a concern about chilled speech.10 O’Connor, J., Minnesota v White (concurring opinion).11 Minnesota v. White (dissenting opinion)

6


full sway, from elections designed to select those whose office it is to administer justice without

respect to persons.”12

Ginsburg emphasized that elections are not all alike; one of their main points of

difference lies in the offices they are meant to fill. Legislative and executive elections

serve to fill offices whose functions are embedded within a thicket of political bargaining.

As such, “[c]andidates for political offices, in keeping with their representative role, must

be left free to inform the electorate of their positions on specific issues.”13 But judges are

not representatives in precisely this way. They are rather representatives in expounding

the law. As Ginsburg phrased it, “[t]hey do not sit as representatives of particular

persons, communities, or parties; they serve no faction or constituency.”14 This function

creates special reasons for a special structuring of judicial campaigns. Specifically, that

function should allow Minnesota to tailor its judicial selection mechanism to suit the

nature of the office. In Ginsburg’s words, “[t]he balance the State sought to achieve–

allowing the people to elect judges, but safeguarding the process so that the integrity of

the judiciary would not be compromised– should encounter no First Amendment shoal.”15

12 Minnesota v. White (dissenting opinion).13 Minnesota v. White (dissenting opinion).14 Minnesota v. White (dissenting opinion).15 Minnesota v. White (dissenting opinion). Ginsburg might have added that no Justice would maintain that any speech regulation of judicial campaigns is impermissible. For example, all the Justices agreed that candidates for judicial office may be barred from making promises to decide specific cases in a specific way, even though this would be unconstitutional in any other kind of political campaign. Furthermore, although Ginsburg did not make this connection, her reasoning may have an analogy in elections for legislative or executive office through the mechanism of campaign finance. Although politicians can make specific promises to voters, still the Court allows campaign finance regulations, which do raise First Amendment concerns, to operate if they are closely tied to stopping bribery. See McConnell, United States Senator, et al. v. Federal Election Commission et al., U.S. 02-1674 (2003) That kind of speech regulation is permissible to, in O’Connor’s words, protect against “undue influence on an officeholder’s judgment, and the appearance of such influence.” O’Connor, J., McConnell v. Federal Election Commission (majority opinion), citing Federal Election Commission v. Colorado Republican Federal Campaign Commission, 533 U.S. 431, 441. These concerns could perhaps provide a reasonable basis for a judicial exception to an otherwise restrictive conception of the meaning of the First Amendment.

7


Ginsburg further argued that the differentiation between different kinds of

elections (or, we could add, between speech important for the achievement of the goals of

the election, and speech like bribery, which undermines the achievement of those goals)

should lead us to a deeper understanding of Minnesota v. White. The question there is not

about whether regulation of judges’ campaign speech is allowable, but actually about

what kind of speech regulation is allowable. Ginsburg argued against resolving the

“tension between the ideal character of the judicial office and the real world of electoral

politics” by “forcing States to choose one pole or the other.” The First Amendment

should not be construed to force such a choice. Rather, out of respect for the “exercise of

[the] sovereign prerogatives” of the people, states should be free to promote both judicial

integrity and political representation.16

One attractive element of Ginsburg’s approach is that it recognizes the delicacy of the

institutional problem associated with judicial elections. While we may want judges to be political

representatives, we want them to be representatives on matters of legal meaning. This is a unique

kind of representational demand. Ginsburg is hence correct that the dilemma about judicial

speech codes raised in White cannot be appropriately resolved by appealing only to the value of

political representation, only to the value of impartiality, or only to the constraint of the First

Amendment. But, although Ginsburg was right to look to the multiple purposes and values at

stake in the question of judicial speech codes, her opinion is incorrect to suggest that judicial

elections are an adequate way of relating the multiple values which are indeed at stake in

Minnesota v. White. The problem with judicial elections is not only that they might require

speech codes which may violate the First Amendment. It is that they are actually poorly-suited to

achieve political representation on matters of legal meaning, as well. Judicial elections risk

sacrificing impartiality and neutrality, but without the promise of a corresponding gain for the

value of political representation.

16 Ginsburg, J., Minnesota v. White (dissenting opinion).

8


II. The value of a representative judiciary

Our question about judicial elections starts with the recognition that, although judges are

to be neutral decisionmakers bound by law, they are also political representatives. They are

representatives not only because they interpret the people’s text, but also through the procedures

by which they are selected. This status of the judiciary as a representative body was

acknowledged in the founding. During the Constitutional Convention, Charles Pinkney argued to

vest the entire appointments power in the legislature in part because it was a representative body

which would enjoy “the confidence of the people.”17 Edmund Randolph and Roger Sherman

argued that the Senate should play a strong role in appointments because the variety of

perspectives there mirrored the “diffuse” nature of the choice to be made, although Randolph

emphasized that, for this purpose, it was unfortunate that the Senate was not a popular body but

rather had equal representation of the states.18 Elbridge Gerry emphasized that the appointment of

judges should “give satisfaction both to the people and to the States,” and so recommended a

primary role for the legislature.19

But it was primarily the Jacksonian movement that brought heightened political attention

– and scrutiny– to the role of the judiciary as a representative institution. This scrutiny was not

limited to judicial institutions. Jacksonian reformers subjected all major institutions to democratic

scrutiny and revised them in a populist direction. Because Jacksonians understood elections in all

cases as the device best calculated to achieve true democratic representation, the effect of their

arguments for judicial selection procedures was a movement among the states away from

17 Adrienne Koch ed., Notes of the Debates in the Federal Convention of 1787 Reported by James Madison (New York: W.W. Norton, 1966), 344. See also p. 68, 316.18 Adrienne Koch ed., Notes of the Debates in the Federal Convention of 1787 Reported by James Madison (New York: W.W. Norton, 1966), 315, 31619 Adrienne Koch ed., Notes of the Debates in the Federal Convention of 1787 Reported by James Madison (New York: W.W. Norton, 1966), 345

9


appointments schemes and towards elections.20 Elections were understood to be more

straightforward mechanisms for ensuring judicial responsibility to the people.

The claim that judges should be selected through procedures that allow for democratic

representation is not distinctive to Jacksonians. It is a common premise of much current

constitutional theory. Scholars including Bruce Ackerman, Jack Balkin, Sanford Levinson, Terri

Peretti, and Christopher Eisgruber are united in seeing the Supreme Court’s authority as related,

not only to its capacity to provide a distinctive and valuable perspective on the meaning of the

Constitution, but also to its status as an institution whose members are political representatives of

the American people (although they differ in the implications they draw from this thesis). 21

20 See Caleb Nelson, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” The American Journal of Legal History, Vol. 37, No. 2. (Apr., 1993), pp. 190-224, for an argument about the sophisticated Jacksonian origins of the turn to judicial elections. See also Stephen P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” 62 U. Chi. L. Rev. 689 (1995)21 Bruce Ackerman emphasizes how the Court’s status as a representative institution does and should affect constitutional change over time. Bruce Ackerman, We the People (Cambridge, Mass.: Belknap Press of Harvard University Press, 1991). Jack Balkin and Sanford Levinson argue that the Court, far from being a counter-majoritarian instrument, is actually an institution which extends and entrenches partisan influences through time. Jack M. Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law Review 87:6 (2001). Christopher Eisgruber defends the Court as an institution of political representation distinctively situated to insert a concern for principle into American politics. Christopher L. Eisgruber. Constitutional Self-Government (Cambridge, Mass.: Harvard University Press, 2001). Terri Peretti argues that the Court is rightly understood as a representative institution, and so should take its political responsibilities seriously. Terri Peretti, In Defense of a Political Court (Princeton: Princeton University Press, 2001). Paul W. Kahn also reads Alexander Bickel as making an argument that the Court is a representative body; for this reading of Bickel, see Kahn’s Legitimacy and History: Self-Government in American Constitutional Theory (New Haven: Yale University Press, 1992), p144. Robert A. Dahl is known for elaborating some of the empirical consequences of the Court’s status as a representative body in his “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 J. Pub. L. 279 (1957).Not all scholars embrace the claim that the Court should be understood as a representative institution in any way other than that it interprets the people’s text. Some emphasize, rather, that its legitimacy rests (and, implicitly, should rest) on its use of neutrality and fair procedures. See Tom R. Tyler and Gregory Mitchell, “Legitimacy and the Empowerment of Discretionary Legal Authority: the United States Supreme Court and Abortion Rights,” Duke Law Journal 43:4 (1994); see also James Gibson’s response to the Tyler thesis at James L. Gibson, “Institutional Legitimacy, Procedural Justice, and Compliance with Supreme Court Decisions: A Question of Causality,” Law & Society Review, Vol. 25, No. 3. (1991), pp. 631-636

10


These scholars are correct to emphasize that the judiciary’s qualities of political

relatedness are as constitutionally significant as its legal capacities. Although its function is

different from that of the legislative or executive branch, the federal judiciary is a representative

institution no less than they are. Its authority derives, not only from its capacity to make decisions

which, in their substance, enhance democracy, apply the Constitution, and protect human dignity,

but also from its representational link to the people themselves. This representational authority

must derive from a process of political selection which is democratically defensible. This is so

that judicial decisions not be “impositions from a privileged or alien class,” as they might be if

the Supreme Court were composed simply of the constitutional law faculty at top law schools; or

if sitting judges named their replacements; or if, as in pre-Revolutionary France, judges

purchased their offices.22

The value of a representational connection between the judiciary and the “people” can be

defended on three fronts. First, a judiciary with accurate claims to democratic representation goes

some way towards responding to the counter-majoritarian difficulty, the concern that arises about

democratic authority when a Court acts against the will of the legislature and executive. This

difficulty is rendered less acute when we see the courts, too, as representative institutions,

although the procedures upon which this representational warrant is based are differently

configured from those of the legislature or of the executive. Courts with their own defensible

connection to the people cannot be so easily dismissed as anti-democratic institutions.23

22 Eisgruber (2001), 65. Lisa Hilbink, “Legalism against Democracy: The Political Role of the Judiciary in Chile, 1964-1994,” doctoral dissertation, University of California-San Diego (1999); Carol M. Rose, “Judicial Selection and the Mask of Nonpartisanship,” Northwestern University Law Review 84 (Spring/Summer 1990): 932.23 For an explanation of the counter-majoritarian difficulty see Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven: Yale University Press, 1986). Louis Favoreu suggests that the involvement of voters or the political branches in judicial selection gives judges “a legitimacy in constitutional interpretation that continental career judges lack.” Vicki C. Jackson, Mark Tushnet (eds.) Comparative Constitutional Law (New York: Foundation Press, 1999), 457, referring to Louis Favoreu, “American and European Models of Constitutional Justice,” Comparative and Private International Law: Essays in Honor of John Henry Merryman, David Clark ed., (Duncker & Humblot 1990). The authors in fn21 all emphasize the procedural links between the judiciary and the American people precisely in order

11


The second advantage of a representative judiciary may be one of perceived legitimacy.

A democratic polity may grant authority more easily to institutions that they perceive to be

representationally linked to the people, although of course they should demand more of their

institutions than mere democratic representation. This advantage is empirically contingent,

though— for example, Robert Dahl asserts that the Supreme Court’s legitimacy in the United

States rests on the popular fiction that the Court is not a representative body.24 Investigation of

this question would require looking at public support for judiciaries with no claim to be

representative institutions and comparing it to support in countries whose judges are selected

through defensible procedures from the point of view of democratic representation.25

We should not overlook an important corollary of this second point. The Court’s

appointment procedures do not provide the only avenue towards perceived legitimacy; those

procedures may also support the selection of jurists who will render decisions according to

principles which are broadly acceptable, even if many Americans could not accept every

application of those principles.26 A great deal of research links the perceived legitimacy of the

Supreme Court to public agreement with the political values it supports in its decisions.27 Thus a

to respond to the countermajoritarian difficulty.24 Dahl (1957), p280.25 There is some tangentially related research on public support for the Supreme Court, but it is not comparative. See Thomas R. Marshall, “Policymaking and the Supreme Court: When Do Supreme Court Rulings Prevail?” The Western Political Quarterly, Vol. 42, No. 4. (Dec., 1989), pp. 493-507. The problem of the ‘democracy deficit’ in the European Union speaks to how democratic representation may enhance institutional legitimacy. See James L. Gibson and Gregory A. Caldeira, “Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis,” British Journal of Political Science, Vol. 28, No. 1. (Jan., 1998), pp. 63-91. More generally on the EU’s democracy deficit, see Anne Marie Burley, “Democracy and Judicial Review in the European Community,” The University of Chicago Law Forum (1992), 81-92; Shirley Williams, “Sovereignty and Accountability in the European Community,” Political Quarterly 61 (1990), 299-317; Brigitte Boyce, “The Democratic Deficit of the European Community,” Parliamentary Affars, 46 (1993) 458-77; Juliet Lodge, “Democratic Legitimacy and European Union,” Public Policy and Administration 6 (1991) 21-9. 26 James Gibson calls this a “sharing” form of representation. James L. Gibson, “Enviornmental Constraints on the Behavior of Judges: A Representational Model of Judicial Decision Making,” Law & Society Review, Vol. 14, No. 2. (Winter, 1980), pp. 343-370, p347.27 Much scholarship links the perceived legitimacy of the Supreme Court to public agreement with the See Jack Walter Peltason, Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation (University of Illinois Press, 1971); more recently, see Gregory A. Caldeira and

12


representative judiciary may find its perceived legitimacy enhanced, not because of its selection

procedures, but because of congruence between the substance of the decisions it renders and

public sentiment. The concern for enhancing the judiciary’s perceived legitimacy has long been

an argument used on behalf of judicial elections: one early proponent expressed his hope that an

elected Iowa bench would be “composed of men of opposite political parties, so that, being

composed of men of various political opinions, it might command the confidence of all men.”28 In

Illinois, one election supporter argued that an appointed judiciary could enjoy “none of the

confidence of the people” because of its relationship, not to “the people,” but to other branches of

government.29

The final benefit of a representative judiciary is that such a judiciary may be

more likely to contain perspectives that are of epistemic advantage in arriving at the best

interpretation of important legal commitments, including constitutional commitments.

This is the case only if the grounds for representation are related to the content of the

judiciary’s business. Felix Frankfurter made this point in relationship to geographic

James L. Gibson, “The Etiology of Public Support for the Supreme Court,” American Journal of Political Science, Vol. 36, No. 3. (Aug., 1992), pp. 635-664. See also James L. Gibson and Gregory Caldeira, “Blacks and the Supreme Court: Models of Diffuse Support,” Journal of Poltiics 54 (1002), 1120-45. Gibson and Caldeira 1997 on evolutions in African American support of the Court in response to shifts in the Court’s work. See Gregory A. Caldeira, “Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court,” The American Political Science Review, Vol. 80, No. 4. (Dec., 1986), pp. 1209-1226 on shifts over time. James L. Gibson, Gregory A. Caldeira, Vanessa A. Baird, “On the Legitimacy of National High Courts,” The American Political Science Review, Vol. 92, No. 2. (Jun., 1998), pp. 343-358. This buttress to judicial legitimacy may in turn have positive consequences for the effectiveness of the Court in achieving compliance. See James L. Gibson, “Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance,” Law & Society Review, Vol. 23, No. 3. (1989), pp. 469-496.28 1 THE DEBATES OF THE CONSTITUTIONAL CONVENTION, OF THE STATE OF IOWA, ASSEMBLED AT IOWA CITY, MONDAY, JANUARY 19, 1857 (Davenport 1857) at 450, as cited in Caleb Nelson, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” The American Journal of Legal History, Vol. 37, No. 2. (Apr., 1993), 19729 Remarks of David Davis, CONSTITUTIONAL DEBATES OF 1857 (Arthur Charles Cole, ed., 1919) at 461-2, as cited in Caleb Nelson, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” The American Journal of Legal History, Vol. 37, No. 2. (Apr., 1993), 219

13


representation on the Supreme Court. He emphasized that if Court business was largely

concerned with “sectionally different economic interests,” then geographic considerations

should play a role in judicial selection.30 A Court deciding on questions about property

law in a nation with a heavy sectional politics will find it helpful to have members who

know about the relationship of constitutional commitments to property regimes in

particular regions. Selecting Justices who are geographically representative (and who

know about economic circumstances in their home regions) can thus provide an epistemic

benefit to the Supreme Court as a whole.

This epistemic advantage may extend beyond property to other significant questions in

constitutional or state law. A court that faces many questions about the meaning of equal

protection may be well-served through the inclusion of at least a few members who have

experience with the meaning of equal protection violations.31 (These people may or may not

themselves be members of disadvantaged groups). But in this third domain, the representative

nature of the judiciary is of value only if that representation helps the judiciary achieve fuller

knowledge of the proper way that significant areas of law should be developed.

Although a representative judiciary may be more legitimate, be perceived as more

legitimate, and have more useful experience available for developing difficult areas of the law,

there is one primary objection often posed to the notion of judicial representation: the idea that a

representative judiciary cannot be legally faithful.32 The judiciary is a legal body, meant to

interpret the law. But law has a meaning separate from what the people may desire it to mean.

Some believe that any understanding of the representative nature of the judicial institution

30 Frankfurter (1956-1957): 791.31 Iris Marion Young argues that groups which find themselves in structural relationships of difference may achieve a social perspective which carries special, distinct sensitivities. That perspective can “bring to the public . . . a necessary resource for making the wisest and most just decisions.” Iris Marion Young, “Difference as a Resource for Democratic Communication,” Deliberative Democracy: Essays on Reason and Politics James Bohman and William Rehg, eds. (Cambridge, Mass.: The MIT Press, 1997), 399. 32 See Erwin Chemerinsky, “Evaluating Judicial Candidates,” 61 S. Cal. L. Rev. 1985 (1987-1988)

14


undermines our appreciation for this primary function of judges. The obligation to legal fidelity,

some would argue, means that we should not conceive of the judiciary as a representative

institution.

The problem can be rearticulated as a problem not of political theory but rather as a

problem of institutional design. The function of the judiciary is legal interpretation and the

protection of individual rights; but it is not clear how to construct a constituency for judicial

selection which will be similarly motivated. If we care about having a representative judiciary,

then the concern for institutional designers must be to discover how the office may be structured

so as to sustain the representational warrant, while at the same time creating the institutional

conditions for the judiciary to be able to skillfully interpret the law. The worry that it may be

impossible to combine these values leads some to dismiss the very notion of any value inhering in

a representational Court.33 If we do not follow that dismissal, what are we left with?

The solution to this dilemma is to point towards what it does not mean to say that judges

should be representatives-- namely, that the representational warrant should be configured in any

particular way. Usually, critics of the idea of a representative judiciary have certain institutions or

methods of legal analysis that they believe are implied by the concept of ‘representation,’ and

they object to representation because they object to those particular institutions or methods. But

we can divorce the particular procedures and methods for achieving representation from the value

of representation itself. In other words, we can accept that, in principle, a representative judiciary

could be valuable, while leaving it an open question what the structures would in fact be which

could achieve representation while also achieving legal fidelity (or even if any such structures

33 It is concerns such as these that have led many progressive reformers to argue that it would be a mark of progress when ‘professionalism’, not representational qualities, were marked as the key characteristics of judges. See Richard D. Friedman, “The Transformation in Senate Response to Supreme Court Nominations: From Reconstruction to the Taft Administration and Beyond” Cardozo Law Review 5:1 (1984). [engage this last sentence—Keith]

15


exist). To see the force and meaning of this insight, let us examine a few of the many different

ways that a court could be representative in the context of a concern for legal justifiability.34

[Note to readers- I need names for each of these approaches so your ideas would be helpful]

We can imagine one terrible way in which obligation to representation could be

discharged: A judge could look to the balance of political power before making her decision, infer

whom the majority would want to win in the particular case, and then write the most legally

responsible opinion possible, arriving always at an outcome which favors the “majority-

preferred” litigant. This is probably the nightmare case for most critics of judicial representation.

Although this would be one superficial way for the judiciary to discharge its legal and

representational obligations, such a combining makes a sham of them both. Judges who decide in

such a way will be unable to decide cases impartially. Majority opinion as to the status of the

litigants must be irrelevant in a court of law, because the status of the litigants themselves must

be irrelevant. A judge who exercises her representational warrant by favoring groups who are

well-liked and deciding against groups which are despised cannot uphold central rule of law

values, no matter how well each particular opinion is reasoned out.35

There are other ways for representational warrants to be fulfilled in the context of a

concern for legal fidelity. Judges could interpret the law, not on the basis of what they think the

majority would like to have happen in particular cases, but rather on the basis of principles which

they believe to be majority-approved. In other words, they could be responsive to the principles

around which major political alignments are constructed, not to the identity of the favored

34 See James L. Gibson, “Enviornmental Constraints on the Behavior of Judges: A Representational Model of Judicial Decision Making,” Law & Society Review, Vol. 14, No. 2. (Winter, 1980), pp. 343-370, for a different kind of typology of judicial representation. Gibson is more focused on typologies that allow for different kinds of empirical investigation. Both of the first two kinds of representational fulfillment I discuss fall under his “role playing” mode of judicial representation, where a judge tries to express the constituent’s preferences on a matter even if those preferences differ from the official’s. p348 for discussion.35 There may be special cases in which such a strategy could be justified—for example, in the face of massive and prolonged evidence that the principles themselves upon which Justices are making their decisions are unacceptable to many Americans. See Ackerman’s theory of the switch of 1937

16


political participants. Some believe that this method is distinctive of the jurisprudence of

O’Connor and Blackmun, a belief which has brought those Justices praise from some quarters

and blame from others.36

This is a slightly better way for judges to discharge their representational warrant in the

context of legal justifiability. At least with this strategy, judges retain their capacity to decide

cases at the level of principle, and can hence avoid problems of gross unfairness, where outcomes

are related to the identities of the litigants.37 Also, when the courts face extreme threats to their

independence (when judicial legitimacy is in crisis), this strategy may be protective.

But there are good reasons to eschew it as a general strategy of judicial decision-making.

First, such a way of living out their representational commitments makes it more difficult for

judges to decide cases at all. Judges do not have access to the kind of information about majority

sentiments that legislators, who are in constant contact with their constituents, might have. It is

also extremely unlikely that there exists a consistent state of public opinion on many of the

principles themselves that judges must rely upon. Can we say how many Americans prefer an

interpretive approach that focuses on intention rather than democracy-perfection or economic

growth? Most Americans are simply not informed enough to be able to offer anything in the way

of an opinion. Judges who turn to majority-opinion as a guide for the selection of their principles

hence risk being buffeted through different currents, understandings, and misunderstandings, and

run the risk of undermining their own adherence to principled consistency over time.

An even better way to achieve representational authority in the judiciary is to rest that

warrant upon the institutions of the selection process themselves. The task would be to create a

selection process which will promote jurists whose legal views are representative, but which will

36 Cite.37 This strategy—for individual justices to be responsive to clear majority sentiments on principles of constitutional interpretation—may be especially important in times of massive constitutional transformation, when the Court’s legitimacy may be threatened by too rigid an adherence to out-of-favor principles. This is a very dicey area subject to careful political judgment though because of the risks it raises for rule of law values like predictability and stability. See Ackerman.

17


also allow them full scope, once selected, to make decisions on the basis of their own best

understanding of the law. The advantage of resting the representational warrant upon the selection

process itself is that then, the political obligations of representation are not ones that judges

themselves need be conscientious about. The representational connection can be discharged

structurally, at the level of institutional design, leaving judges freer to make decisions on the basis

of their own best understanding of the law. The representational warrant is intact because the

judges’ own perspectives have themselves been already subjected to some scrutiny through the

selection process. This means that individual judges need not be conscious of themselves as

having special political obligations beyond the proper performance of their legal duties as they

understand them.38 With this third possibility, saying that the goal is a representative judiciary

does not commit us to the idea that judges, once selected, should make decisions according to the

preferences or beliefs of most Americans. They should make decisions according to the methods

of analysis that they believe to be most fruitful. But since they have been selected through a

representative process, it is likely that the methods jurists will use will be ones which are broadly

acceptable.

To argue on behalf of a representative judiciary, I had to eschew argumentation for any

particular procedures of representation. My arguments pertain to the value of representation itself,

not to the value of particular procedural methods for achieving representation. If, accepting the

value of political representation in the abstract, we now move to consider concrete procedures,

great complexity emerges. We are faced with two important, and open, questions.

The first is that, although we may value the idea of a representative judiciary, it is not

clear what vectors the judiciary should be representative upon. The dimensions upon which

representation can occur are limitless and subject to dispute. Should the dominant camps of legal

theory be represented? Should religious groups, major interest groups, or major identity groups

38 See Peretti (2001). Although see Pettit for information on how principled decision-making by individuals can lead to unprincipled decisions as a body. Find cite

18


all be represented? Should courts represent the demographics of their communities in terms of

class, race, or geography? Or should we strive to select judges who are not representative as

individuals, but who in combination hold promise for constructing a representative understanding

of constitutional commitments? For example, should judges have moderate visions of the law, or

should they be representatives of particular groups with perhaps extreme positions on legal

development who will then be asked to deliberate together? Different answers to these kinds of

questions will orient us towards different procedures for judicial selection—all of which, in

principle, could have defensible representative warrants. Knowing that the judiciary should be

representative does not answer the question of how it should be representative.

The second problem is related to the first. So too, the relevant dimensions of legal

expertise are subject to profound dispute (although they are not limitless). We may all be able to

agree on the importance of legal expertise. But what constitutes legal expertise? Fair-mindedness,

ethical sensitivity and ethical behavior, knowledge of the law, and a capacity for principled and

consistent reasoning are all elements of legal expertise. But the these various elements do not all

come into a single package. Judgments are needed about their relative significance. One

candidate may be highly technically skilled in the intricacies of an important area of law. But

another nominee may be distinctive for her broad vision of the purpose of law, her capacity for

fair-mindedness, and for her outstanding moral character. Jeffrey Tulis points out that the relative

value of all of these criteria is politically contestable. Not only do “reasonable citizens differ on

the necessary qualities or the hierarchy of qualities for an ideal justice,” but also “the qualities

one seeks in a particular choice often depend upon the composition of the rest of the Court.”39 We

could elaborate his insight by emphasizing that the larger political context may render certain

qualities more or less important. In some contexts, fundamental legal commitments may be best

defended through judicial efforts to elaborate the details and technicalities of a given reigning

39 Jeffrey Tulis, “Constitutional Abdication: The Senate, the President, and Appointments to the Supreme Court” Case Western Reserve Law Review 47 (Summer 1997): 1337.

19


conception of the law; in other contexts, jurists with broad new visions of the relationship of

those commitments to one another may be more helpful in bringing these commitments to bear

politically.

The fact is that both the proper dimensions of political representation, as well as the

meaning of legal excellence, are subject to reasonable political contestation. It is also true that the

best answer to both questions may differ according to shifting political contexts. What this means

is that institutional designers should eschew the strategy of trying to achieve one kind of

representation or one set of legal virtues. They should not design selection mechanisms, for

example, solely around the commitment to a mirror-like reflection of the demographics of the

community. Instead, as Tulis argues, allowing for representation on this matter means creating a

set of institutional conditions within which the “criteria of choice themselves can be responsibly

established.”40 The best selection structures are ones in which the people themselves can come to

judgments about what the best vectors of representation would be, and for the people to enact that

choice through their selection of candidates.

The important conclusion is that, precisely because of the difficulty of ascertaining what

a representative perspective on the meaning of law is, the judicial selection process should be

oriented precisely around creating a responsible construction of the meaning of the

representational warrant. The selection process should be constructed so that political participants

themselves can arrive at different judgments over time precisely as to the question of what the

best dimension of judicial representation would be, or to what the most relevant dimensions of

legal expertise are in that political context. Participants themselves must be given the tools to

make these judgments. This means that the selection process must allow for the creation of some

kind of deliberative stance on the meaning of the law and its relationship to the political problems

of the time. Many theorists already describe the promise of the federal nomination and

confirmation procedure in these terms, terms that emphasize the significance of the deliberative

40 Tulis (Summer 1997): 1338.

20


forum that they believe the appointments process provides.41 Their argument is that our national

representatives should, as part of their appointments duties, participate in constructing an

understanding of the Constitution’s core values and their relevance to contemporary politics. It is

on the basis of this vision that representatives should make judgments about the suitability of

particular candidates. If elections are a defensible way of constructing a representative

perspective on the law, then the deliberation surrounding elections, and the campaigns

themselves, should also serve this purpose.

The rest of this article argues that this concern—the concern that the selection process

offer a set of conditions within which the people can make defensible judgments about the proper

and relevant dimensions of representation and legal excellence themselves-- must be one of the

main vectors according to which we evaluate various selection processes. What it means to say

that the judiciary should be representative is to say that the selection process should allow some

scope for the people to reach conclusions on this question and for those conclusions to be

reflected in the selection of judges. I have mentioned that awareness of the importance of judges’

status as representatives led Jacksonians to embrace judicial elections. Given the importance of

judicial representation, why not follow the Jacksonians in prescribing judicial elections in order

to ensure a more straightforward congruence between the law that our judges construct, and the

will of the people?

41 Dworkin called the hearings on Bork “an extended seminar on the Constitution.” Dworkin, “From Bork to Kennedy,” The New York Review of Books 34:20 (December 17, 1987): 36, 38-40 (check out), as cited in Nagel [bb: ??], 870. Lawrence Tribe, for example, has urged a “concerted, collective effort by the upper house of Congress to articulate a vision of the Constitution’s future, and to scrutinize potential Justices in that vision’s light.” Tribe (1985), 131. Bruce Ackerman describes the promise of the appointments process in “providing us with institutions and a language by which we may discriminate between the passing show of normal politics and the deeper movements in popular opinion which, after much passionate debate and institutional struggle, ultimately earn a democratic place in the constitutional law.” Bruce A. Ackerman, “Transformative Appointments,” Harvard Law Review 101 (1987): 1178-9. Stephen Carter also suggests that nomination debates are a place for considering the “fundamental aspirations and long-term interests of the American people.” Carter, 1192

21


III. Elections as a device of representation

Far from the problems with judicial elections arising from the fact that the people are

“unwilling or unable to exercise their democratic responsibilities in the selection of judges,” the

problem is actually that the structure of elections itself does not provide a mechanism for them to

exercise those responsibilities.42 [insert “you can trust the Texas voter” argument]

Judicial elections are inappropriate selection devices precisely because they offer an

inappropriate portrait of the people’s will. How can this be? The answer relates to the predictable

deficiencies in the structure of the office of the ‘voter’ in exercising political power. The office of

the voter is comprised of a distinctive structure which encourages some types of behaviors and

justifications, and discourages (or even disallows) others. These difficulties problematize any

easy equation between the results of a particular election and the will of the people.43

The deficiencies associated with this structure are well-known, and their consequences

for elections are important.44 But they are also partially surmountable, with devices like

campaigns. [get cites] Political campaigns are compensatory mechanisms which are relatively

well-suited for bringing the results of an election more into line with the will of the people.45

Given such compensatory mechanisms, the democratic benefits to having an electoral connection

for the legislature and executive are significant.

42 Philip L. Dubois, “The Significance of Voting Cues in State Supreme Court Elections,” Law and Society Review vol 13 n 3 (Spring 1979), 758-9. For the development of this charge, see Glenn R. Winters, Selected Readings: Judicial Selection and Tenure (rev.ed.) Chicago: The American Judicature Society, 1973 (check)43 See Bruce Ackerman, Storrs Lectures, for argument on this destabilization as a conscious strategy of the framers. See George Kateb, cccc Ethics, for an argument on the moral contribution that such a destabilization makes to political life.44 See Joseph Schumpeter, Capitalism, Socialism, and Democracy 3rd ed. (Harper: New York, 1950) for a dismissal of the concept that elections are the expression of any kind of public ‘will’ or judgment. V.O. Key, Jr., characterized the voice of the people as an “echo” because of the difficulty of establishing the relationship between the results and the candidate’s outlook. V.O. Key, Jr., The Responsible Electorate: Rationality in Presidential Voting (Cambridge: The Belknap Press of Harvard University Press, 1966), 2.45 Although campaigns have deficiencies of their own.

22


Unfortunately, there are good reasons to believe that the special contours of the judicial

office simultaneously intensify the predictable limitations associated with expressing one’s view

through voting, while at the same time the consequences of those limitations are rendered more

problematic. The mechanisms that institutional designers have come up with to mitigate these

costs, moreover, sacrifice political representation without achieving legal impartiality or

neutrality.

1. The Office of Voter

What is distinctive about the office of the voter? Christopher Eisgruber draws our

attention to the fact that the office of the voter, like any other political office, is structured with a

very particular set of incentives and disincentives. The most notable features of the office of voter

are that it is anonymous; that the voter responds to an agenda defined by others (both in that the

campaign is conducted by others, and also literally in that the ballot is given by others); voters are

also expected to exercise their judgments at times selected by others; the voter is not encouraged

or even able to give the reasons behind his decision; and being politically stimulated or engaged

is not a necessary feature of the office. In other words, a voter may receive his or her only prompt

to think about an election, and his or her only information about the content of the election, from

the ballot itself.46 Voters also know that their individual ballot will have no consequence for the

outcome of the election.

We must emphasize the distinctiveness of these structural features of the office of voter.

Legislators and presidents face, as a very part of their jobs, the obligation to construct political

agendas for others to consider. Jurors, judges, legislators, and presidents are all regularly asked

for, and challenged about, their reasons. Jurors resemble voters in that they face an agenda

constructed and narrowed by others, and they perform without a wide audience (although they do

46 See xxx on the role of stimulation in encouraging people to broaden and deepen their political information.

23


face an intimate audience)-- but they are called to deliberate in small groups, and they know that

their individual decisions are of crucial significance for the final result.47

These contours generate predictable problems. In the words of Eisgruber, the office gives

people “very little incentive to take their responsibilities seriously; each individual voter can be

sure that her vote will affect neither her reputation nor the government’s policy. As a result,

people may behave very differently when they take on the office of ‘voter’ than when they take

on the office of ‘juror’ or when they testify at a public hearing.”48 They may, for example, behave

in especially self-interested ways; they may make political decisions with less investigation then

they would give to the purchase of a computer. They may also make decisions which seem to lack

coherence, by for example voting for candidates from different parties for different offices, or

giving conflicting political messages at different moments.49 Globally speaking, this leads to

certain predictable problems associated with trying to say that elections can speak for ‘the

people.’ Again, these problems are well-documented. They include the problem of low (and

skewed) voter turnout; low information about the issues being contested in the campaign, or

about the positions taken by the candidates; decision-making on the basis of irrelevant

characteristics, for example height or physical beauty; and the expression of preferences which,

once decoded and interpreted, seem to make no sense at all.50

47 The experience of serving on a jury seems to make citizens more likely to vote. John Gastil, E. Pierre Deess, and Phil Weiser, “Civic Awakening in the Jury Room: A Test of the Connection between Jury Deliberation and Political Participation,” The Journal of Politics 64:2 (2002)48 Eisgruber, 50-51. [bb: Eisgruber (2001) or Eisgruber (1993)?]49 For information on this in the context of presidential voting, see Key, Southern Politics in State and Nation50 On the problem of low turnout, see Arend Lijphart, “Unequal Participation: Democracy’s Unresolved Dilemma,” The American Political Science Review 91:1 (1997). See also Jack C. Doppelt and Ellen Shearer, Nonvoters: America's No-Shows (Sage: Thousand Oaks, CA: 1999); Douglas Amy, Real Choices, New Voices (New York: Columbia University Press, 1993); Frances Fox Piven and Richard Cloward, Why Americans Don’t Vote (New York: Pantheon Books, 1988); Ruy Teixeira, The Disappearing American Voter (Washington, D.C.: Brookings Institution Press, 1992). On the problem of the uninformed voter, see Paul Lazarsfeld, Bernard Berelson, and Hazel Gaudet, The People’s Choice: How the Voter Makes Up His Mind in a Presidential Campaign, (2nd ed.; New York: Columbia University Press, 1948). On the problem of nonsensical preferences, see

24

http://www.jstor.org/view/00223816/di021238/02p0062r/0?frame=noframe&dpi=3&[email protected]/01cc99339700505e1c3&backcontext=page&backurl=/cgi-bin/jstor/viewitem/00223816/di021238/02p0062r/0%3Fframe%3Dnoframe%26dpi%3D3%26userID%3D809489%20

http://www.jstor.org/view/00223816/di021238/02p0062r/0?frame=noframe&dpi=3&[email protected]/01cc99339700505e1c3&backcontext=page&backurl=/cgi-bin/jstor/viewitem/00223816/di021238/02p0062r/0%3Fframe%3Dnoframe%26dpi%3D3%26userID%3D809489%20


But these problems are not the last word on elections. Parties and other politically

interested groups have developed strategies to compensate for these problems, devices which

receive their full expression in the political campaign. Political campaigns are extremely

important compensatory mechanisms. Campaigns stimulate voters, making them more interested

and giving them information about candidates. Campaigns, especially contested campaigns,

usually involve efforts to increase turnout. Campaigns also make cues, or information short-cuts,

available to voters through which they may make surprisingly good judgments on the basis of

very small amounts of information. These efforts, of course, cost enormous amounts of money;

educating voters, informing them, stimulating them, and getting them to vote are all expensive

activities that are necessary if the election is to give any portrait of the people’s will.

There is extensive work on how campaigns overcome the deficits associated with voting.

Samuel Popkin, for example, has shown how voters may overcome problems of low-information

by reliance on certain cues which give surprisingly good information on the values, orientation,

and sensitivity of the candidate. Discussing Ford’s effort to court Hispanic voters by eating a

tamale in San Antonio (an effort that backfired when Ford failed to shuck his tamale first),

Popkin argues that, although tamale shucking is not “the best test of a candidate’s policy stands

on income distribution, nuclear disarmament, and foreign trade,” still “neither is it merely

symbolism, devoid of content and without meaning for the political process.”51 Symbols such as

whether a candidate knows how to eat a groups’ food, or whom the candidate associates with and

what clubs he joins, can be clues to how seriously a candidate will take those groups and their

sensibilities; these clues can also give voters surprisingly accurate cues about the opposing

candidates’ policy directions.52 Popkin’s development of a theory of “low-information rationality”

allows him to argue that actually voters are manipulated far less than the dominant view might

hold—that “magic moments” on television, for example, only have dramatic effects when they

51 Samuel L. Popkin, The Reasoning Voter (Chicago: The University of Chicago Press, 1991), 3.52 Popkin (1991), 41.

25


“symboliz[e] changes of opinion that had been developing for some time and which had far more

complex causes.”53

Popkin also emphasizes the role of publicized contestation in reducing voter

misinformation, at least during crucial election moments. Popkin notes that,

[i]t is critical that when a (contested) campaign focuses on an issue it leads to less

voter misperception, not more. Psychological defenses are not so impermeable as

to rule out adjustment between a voter’s perceptions and ‘political reality.’

Misperception is a ‘psychic indulgence’ that decreases when there is heated

political conflict. Political reality is strong enough that when the stakes are raised

and more information becomes available, voters become more accurate in their

perceptions. The more they care about an issue, the better they are able to

understand it; the more strongly the parties differ on an issue, and the more

voters hear about it, the more accurate their perceptions become.54

Campaigns are also of central importance in helping voters connect their political

judgments to one another and to relate those judgments to their own experiences. The effort of a

campaign is to connect the political questions under focus to voter’s experiences, and to achieve

“a common focus, to make one question and one cleavage paramount in voters’ minds,” to

develop messages which will “reach beyond the ‘disinterested interest’ of the highly attentive, on

one hand, and the narrow interests of issue publics, on the other.” These efforts are of critical

importance for helping voters consolidate their impulses and reactions into relatively stable and

coherent political judgments.55

53 Popkin (1991), 20.54 Popkin (1991), 40 (emphasis in original), citing Lazarsfeld, Berelson, and Gaudet (1948), 200.55 Popkin (1991), 216.

26


This benefit of consolidating opinion happens through the way that political campaigns

aggregate multiple dimensions of conflict into structured cleavages according to which the

candidates can then be defined. As Popkin writes,

At the start of any political campaign the individual voter agrees with some

issues, disagrees with others and is indifferent to some. As a result there are

potential or actual conflicts over issues within individuals, within social groups

and strata and within parties. Then the campaign goes on, and somehow the

combination of internal predispositions and external influences brought to bear

on the content of the campaign (the issues) leads to a decision on election day

that one or the other party shall control the presidency for the following four

years. Thus, what starts as a relatively unstructured mass of diverse opinions with

countless cleavages within the electorate is transformed into, or at least

represented by, a single basic cleavage between the two sets of partisans . . .

disagreements are reduced, simplified and generalized into one big residual

difference of opinion.56

Nancy Rosenblum also emphasizes the role of parties in consolidating public opinion, in creating

lines of division and bringing them to public awareness. Campaigns, through parties, make

significant efforts “[t]o formulate and to set before the whole electorate opinions that are held in

common by a portion of it, to impress the merit of these opinions by concerted effort upon the

whole body of voters.”57

56 Bernard Berelson, Paul Lazarsfeld, and William McPhee, Voting: A Study of Opinion Formation in a Presidential Campaign (Chicago: University of Chicago Press, 1954), 183, as cited in Popkin (1991), 216.57 William Bennett Munro, The Government of American Cities (New York: MacMillan, 1913), 155-56, as cited in Nancy Rosenblum, “Partisanship and Independence: On the Side of Angels” (unpublished manuscript): 46.

27


The results of these strategies are significant—significant enough so that a large literature

exists revealing that fear of electoral reprisal makes members of Congress, for example, take the

preferences of constituents into account when voting on controversial issues.58 These

compensatory strategies are not failsafe, of course. Low information, low turnout, incoherent

political beliefs, and the impossibility of voters setting their own agendas will always be a part of

the electoral picture. These problems pose significant challenges to anyone who would too easily

identify the outcome of an election as the “will of the people.”

But there are good reasons to believe that the chief compensatory mechanisms of

campaigns are of especially limited usefulness, or that they may even be counter-productive, for

the purposes of judicial elections.

[discuss general problems with campaigns and judicial impartiality in no more than two

paragraphs. This is the classic argument offered against judicial elections. I don’t deny that it is

true; it is often a reason to structure judicial campaigns in distinctive ways, for example with

public funding, speech codes, or retention elections instead of contested elections.]

[a few paragraphs on how problem of lack of contestation and low turnout, low interest,

low information are especially acute in judicial elections. These all especially undermine

congruence with people’s will, but the democratic deficit is not different from that associated

with the railroad commissioner]

58 Members of Congress: Larry M. Bartels, “Constituency Opinion and Congressional Policy Making: The Reagan Defense Buildup,” American Political Science Review 85 (1991): 457-74; Aage R. Clausen, How Congressmen Decide: A Policy Focus (New York: St. Martin’s Press, 1973); Robert S. Erikson, “Constituency Opinion and Congressional Behavior: A Reexamination of the Miller-Stokes Representation Data,” American Journal of Political Science 22 (1978): 511-35; Morris P. Fiorina, Representatives, Roll Calls, and Constituencies (Lexington, MA: D.C. Heath, 1974); John W. Kingdon, Congressmen’s Voting Decisions (New York: Harper & Row, 1981), Warren E. Miller and Donald Stokes, “Constituency Influence in Congress,” American Political Science Review 57 (1963): 45-56; on other representatives, see Heinz Eulau and Kenneth Prewitt, Labyrinths of Democracy: Adaptations, Linkages, Representation, and Policies in Urban Politics (Indianapolis: Bobbs-Merrill, 1973); Robert S. Friedman and Sybil L. Stokes, “The Role of the Constitution Maker as Representative,” Midwest Journal of Political Science 9 (1965): 148-66

28


Misfiring Cues

But there are representational problems with judicial elections that are special, that go

beyond the problems associated with the use of elections for filling positions that nobody much

cares about. The most important and special problem with judicial campaigns is that the cues

voters use to make reliable low-information judgments in other contexts may simply be less

reliable here. Popkin acknowledges that the accuracy of the low-information clues that voters use

ranges broadly. Hence, instead of judging voters according to how much information they have,

he argues that we should judge them according to the quality of the cues they respond to. “They

must be judged in part by who they know and respond to, not simply by what they know.”59 For

example, he believes that the greatest danger of primary is that “it promotes the assessment of

political character by personal character as displayed on television.”60 Popkin ends his book with

an appeal for political scientists to investigate which kinds of cues are most reliable for voters to

use.

Reliance on cues poses a special problem in the context of judicial elections. Past

positions may be an important source of information for voters deciding on a Congressional

candidate—but what weight should voters give to briefs submitted on behalf of clients? Ford’s

ignorance about how to eat a tamale may give information about his sensitivity and familiarity

with Hispanic groups. But the groups, societies, and clubs that judges may belong to are also

often esoteric. What does it mean to belong to the Federalist Society? Other cues, far from being

misleading, can actually directly threaten rule of law values. For example, one of the clues that

voters use is based on the aggregation of preferences characteristic of party identification.

Partisan identification, as well as campaign “messages” and “themes”, allow for the aggregation

of diverse judgments into opposing agendas, from which the electorate may select one. This

59 Popkin (1991), 219.60 Popkin (1991), 221.

29


structuring is valuable precisely because it allows voters to connect their political impulses

together into political agendas which are purposeful and coherent.

But it is not clear that political judgments on the meaning of the law should be aggregated

into these kinds of camps that are so helpful for straightforward judgments about proper policies.

Judgments on the meaning of the law aggregate together in ways quite different from how more

general political judgments aggregate together. Rebecca Brown, for example, distinguishes

between first- and second-order political questions. First-order questions (Is homosexuality

wrong?) require moral judgment, but moral judgment of a different kind from second-order

questions (is it permissible for government to regulate homosexual conduct)?61 Brown believes

that second order questions are less transparent to voters then first-order questions. Some voters

may not even see a difference between the two-- in response to the Kelo decision, one citizen

said, “how can you just say, I'm able to take your property, so I can go put another Wal-Mart on

it? No. That's wrong. And he should have saw that.”62

More importantly for the communication of information in campaigns, the way that the

answers to second-order questions fit together is quite different from how answers to first-order

questions fit together. A justice committed to a broad interpretation of Congress’ commerce

power, for example, might be committed to allowing Congress to regulate intrastate marijuana

sales as well as passing enviornmental protection. Justice Stevens apparently find himself in just

such a position, voting to uphold Congressional regulations of marijuana even though he would

be in favor of de-regulation. Given the stakes for the Congressional commerce clause power,

though, Stevens has said that “our duty to uphold the application of the federal [marijuana] statute

was pellucidly clear.” 63

61 Rebecca L. Brown, “Government for the People,” University of San Francisco Law Review 37 (Fall 2002): 17-19.62 World News Tonight, ABC News Transcripts (August 25, 2005).63 Linda Greenhouse, “Justice Weighs Desire v. Duty (Duty Prevails)” New York Times (August 25, 2005).

30


The template of this kind of reasoning does not follow the ordinary template of how

political issues are bundled together, where “liberals” would want Congress to fashion

environmental protection laws, but without being able to regulate marijuana sales. And yet the

judiciary should operate entirely at this level of second-order judgments. The distinction between

these two kinds of questions, and the fact that political campaigns cannot be expected to congeal

their messages around answers to second-order questions, gives us good reason to believe that the

political packaging which is a characteristic—and indeed, necessary—part of a political campaign

would risk severely undermining the capacity of judges to offer reflective, appropriate,

considered, and principled responses to these second-order questions—which is, of course, their

job.

Other information shortcuts that voters use during campaigns are similarly destructive of

rule of law values. For example, one common way for voters to evaluate candidates for any office

is according to the results they achieve. But to vote for judges on the basis of results-oriented

considerations undermines the value placed on following proper legal procedures. Martin Shapiro

emphasizes that although some citizens might vote on a principled basis, “we have no way of

knowing the extent to which this is done . . . and voters are not legally bound to decide this

way.”64 Joseph Grodin, a judge who was defeated in a California retention election, emphasizes

that no matter what criteria we believe voters should use to make their decisions,

[o]ur experience with judicial elections demonstrates . . . that these criteria are

not capable of being applied with that degree of precision. That experience

teaches us, on the contrary, that whatever the applicable criteria are said to be,

the voters tend to cast their ballots on the basis of whether or not they like the

results in the cases that the judge has decided.65

64 Michael H. Shapiro, “Introduction: Judicial Selection and the Design of Clumsy Institutions,” University of Southern California Law Review 61 (September 1988): 1562, n34.65 Grodin (1988): 1980.

31


Studies support Grodin’s assertion: during 1986 Rose Bird retention election in California, “[a]

Field exit poll asked the question, ‘Why did you vote NO on the Rose Bird confirmation?’ Sixty-

six percent said it was because she was ‘too lenient, too soft on crime.’ Sixty-four percent said it

was because they ‘did not like her position on the death penalty.’ The research concluded that

“Californians were almost exclusively concerned with the substance of the judge’s decisions,

particularly in death penalty cases and criminal cases.”66 Penny White, a Tennessee Supreme

Court Justice, was defeated in a retention election largely because of her vote to vacate a single

death sentence on the grounds that the convict had a right to have mitigating evidence considered

at sentencing.67 It can be very difficult for voters to understand the basis for decisions such as

these, and without such understanding, the predictable cues voters use to overcome problems of

low-information misfire. Voting on the basis of results seems to, in turn, have consequences for

the decisions judges make: some statistics show that judges who face elections are much more

likely to override jury sentences of life without parole and instead impose the death penalty than

are judges who are not standing for election.68 We can presume that lawyers and judges angling

66 See San Francisco Chronicle (November 5, 1986): 1B, column 1, as cited in Joseph R. Grodin (1988): 1980, n29. For a defense of this judgment on Bird, see Gerald F. Uelmen, “Review of Death Penalty Judgments by the Supreme Court of California: A Tale of Two Courts,” 23 Loy. L.A. L. Rev. 237 (1989), and see Paul D. Carrington, “Judicial Independence and Democratic Accountability in Highest State Courts, “ Law and Contemporary Problems, vol 61 no 3 (Summer 1998), 79-126 (check the Uelman piece. What to do with Rose Bird? Did she just rule against the constitution?)67 Michael R. Dimino, “Perspectives: Judicial Elections versus Merit Selection: The Futile Quest for a System of Judicial ‘Merit’ Selection,” Albany Law Review 67 (2004): 809. Research has shown that judicial rulings on highly controversial cases are highly significant in determining their electoral fates. Paul Brace and Laura Langer, “The preemptive power of sate supreme courts: Enactment of abortion and death penalty laws in the American states,” Working paper, Rice University (2002). Stephen Bright, “Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?” 72 N.Y.U. L. Rev. 308, 310 (1997) (check this piece—should have on Penny White)68 Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” Boston University Law Review 75 (May 1995): 793-794.

32


for judicial candidacies would be similarly careful not to appear too lenient with the death

penalty, perhaps even if that leniency were legally necessary.

I emphasize that evaluating judges solely on the basis of results-oriented criteria finds no

comfort in any interpretive theory that is at all committed to the legal values of neutrality and

impartiality. (Some critical legal scholars may allow for pure results-oriented judgments, but at

the cost of totally dislodging of the ideas of impartiality and neutrality). Some have argued that

voters’ results-oriented decisions might be justifiable under a Dworkinian legal theory, on the

idea that voters are just as well-suited to evaluating judges’ moral positions as anyone else.69 This

argument rests on a misunderstanding of Dworkin. With Dworkin, there are criteria of ‘fit’ and

‘integrity’ that should lead judges to depart in some or many cases from their preferred moral

outcomes. More importantly, Dworkin emphasizes that the appropriate place for political

judgment is the set of principles that a judge uses when deciding cases, not the particular results,

parties, or interests that are promoted in a particular case. The principles a judge uses should be

principles that the people can accept as their own. But this is very different from saying that

judges should apply the death penalty at a high rate, even if the majority, or “the people” duly

constituted, are comfortable with the morality of that penalty. So, for example, a Dworkinian

judge who believed the penalty to be morally undesirable might still believe it to be

constitutional; and a judge who accepted both the legality and morality of the death penalty might

still vote to void a particular sentence if there were procedural problems at the trial or other

principled problems with applying it in that particular case.

So these predictable problems with the office of voter are even more problematic when

applied to judicial elections—and campaigns, which are normally an important compensatory

mechanism for these problems, may only aggravate the threat to legal values.

69 Cite piece on interpretation/selection mechanisms

33


Special Regulation of Judicial Elections

Facing the difficulties to both the legal value of impartiality and the value of political

represenation, some institutional designers have sought to achieve representative constructions on

legal meanings by regulating campaigns in distinctive ways; for example, by rendering judicial

elections non-partisan, non-contestatory, or regulated by speech codes. These methods apply to

the vast majority of judicial elections among the states. The dominant method of electing judges

is through the Missouri Plan, or the ‘merit-selection plan,’ which came to the fore in the 1940s as

an attempt to allow for the public expression of both the legal and political values in judicial

selection. This plan is used in eleven states, most notably California.70 Under the plan, the

governor (usually acting through a nonpartisan commission) selects a judge, and after a term of

service, voters are given a chance to retain or dismiss that particular candidate. The retention

election does not make use of partisan labels, and candidates are uncontested. Not all judicial

elections happen under the Missouri plan, though. Judicial elections may also be partisan, or non-

partisan and yet contested. All of these institutions—partisan elections, non-partisan elections,

and the Missouri plan—are subject to objections on the basis of the distinctive features of the

office of voter.

The Missouri Plan was an effort to insulate judicial candidates from the pressures

associated with campaigns—the pressures of financing campaigns (in order to overcome the

problems of low information and low turnout), the pressures of aggregating legal issues into

contending camps (in order to present voters with a message and a clear alternative), and the

pressures of trying to communicate to voters in broad strokes how they should evaluate

complicated and highly formalistic decisions (to overcome the problem of low information).

Campaign expenditure regulations and speech codes are also attempts to protect candidates from

improper pressures. Nicholas Lovrich and Charles Sheldon refer to the resulting institutions as “a

70 Wikipedia, “Missouri Plan;” available from http://en.wikipedia.org/wiki/Missouri_Plan. Accessed August 15, 2005.

34

http://en.wikipedia.org/wiki/Missouri_Plan


composite notion of ‘non-political’ but elective judiciaries.” 71 Martin Shapiro refers to them as

“clumsy institutions,” ones that don’t rely solely on the legal or political values, but which rather

try to incorporate multiple and perhaps incongruous values. He writes, “[I]f we believe in both

[democracy and rule of law] ideas and are loathe to administer knockout blows to either,

appointing judges and subjecting them to retention elections makes some sense. Neither value

loses, or neither loses badly; both are reinforced.”72

But the pressures that the Missouri Plan tries to overcome are there precisely as

compensatory mechanisms against the predictable failures of the office of voter. Those failures,

without compensatory mechanisms, make it troubling to associate election results with the

people’s will at all. Insulating judges from those pressures means depriving the electorate of

exactly those chief mechanisms that are so necessary for compensating for predictable difficulties

associated with their office.

For example, consider the problem of low voter turnout, which I mentioned is especially

acute in judicial campaigns. Philip Dubois has shown that low turnout numbers, where they exist,

are not necessarily an indication of low voter interest, but rather are predictable responses to the

institutional contexts in which voting for judicial offices happen.73 Those institutional contexts

are designed to reduce the “politics” in judicial elections, so it is not surprising that they would

also reduce turnout.74 In non-partisan elections, parties as organizations are not invested in

bringing out the vote. Also, the lack of challengers that is characteristic of non-partisan elections

(and definitive of the retention election system) is a problem for election salience, because it is

71 Nicholas P. Lovrich, Jr. and Charles H. Sheldon, “Voters in Contested, Nonpartisan Judicial Elections: A Responsible Electorate or a Problematic Public?” The Western Political Quarterly 36:2 (June 1983): 241-256.72 Shapiro (September 1988): 1561.73 Philip L. Dubois, “Voter Turnout in State Judicial Elections: An Analysis of the Tail on the Electoral Kite,” The Journal of Politics 41:3 (August 1979): 885-6.74 Hall (Spring 1984), 356. Of the Australian (secret) ballot, the direct party primary, and the nonpartisan ballot (all progressive innovations which lower voter turnout), the nonpartisan ballot has the biggest effect on lowering turnout.

35


political challengers who are motivated to make political issues out of potentially unpopular

rulings and to educate the public as to the meaning and significance of those rulings.

I mentioned before that these efforts result in extremely high retention rates, even higher

than for judges in pure electoral states.75 Those high retention rate indicates a shift of authoritative

power. A high retention rate means that the effective source of power is not the voters themselves

acting in the retention election, but rather the body which originally chooses the judge: in the case

of the Missouri Plan, the nominating commission.

It is here in the nominating commissions, presumably, that the legal values are brought to

bear on the selection of candidates. The presumption is that, being freed from partisan political

power, the nominating commissions would be more able to judge in a clear-sighted way the

capacities of the candidates. And the commissions are usually staffed by judges and lawyers. But

the values of legalism are actually not necessarily reflected here, because judges and lawyers do

not contribute to the legal values merely by being judges or lawyers. The legal values are

rendered operative through distinctive structuring of incentives and pressures. But nominators are

not responsible to the legal values nor are they vulnerable to legal pressures. They answer to no

higher court, for example. Nothing in the simple fact of being a lawyer indicates that a nominator

will choose candidates based on their legal capacities. A nominator, even a lawyer, may select her

friends instead. In fact, there is no evidence that the judges selected by nominating committees

are any higher quality than judges selected through the procedures of states with ordinary

competitive elections.76 However, there is considerable evidence that the process through which

75 On average more than 80% of judges win reelection. Dimino (2004): 807.76 Henry R. Glick and Craig F. Emmert, “Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Judges,” Judicature 70 (1987), as cited in Judicial Elections White Paper Task Force, “Judicial Selection White Papers: The Case for Partisan Elections,” University of Toledo Law Review 33 (Winter 2002): 399. This finding has been validated by Daniel W. Shuman and Anthony Champagne, Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries, Psychology, Public Policy and Law 3 (1997), 248, as cited in White Paper Task Force (2002). Also Melissa Gann Hall, “Electoral Politics and Strategic Voting in State Supreme Courts,” The Journal of Politics 54:2 (May 1992): 428, cites massive literature demonstrating that selection mechanism seems to have no impact on the operation of state judiciaries or the quality of the bench as measured by educational

36


nominating commissions come to their decisions is just as politicized as the broader electoral

process—only here, the politics are not partisan politics, but politics of the state bar. What

nominating commissions actually reflect is, not a commitment to the legal values, but rather a

commitment to elite decision-making.

Such elite decision-making may be just as “political” as party politics, for non-partisan

commissions also make decisions on the basis of particularistic solidarities. But the political

orientation is an inwards one. It is an orientation towards the politics of the bar, not the politics of

the public. In retention systems, a would-be judges’ constituency is not the state electorate or

political party, but rather those state lawyers with influence on the governor’s nominating

commission.77 There is broad agreement that

far from taking judicial selection out of politics, the Missouri Plan actually

tended to replace politics, wherein the judge faces popular election (or selection

by a popularly elected official), with a somewhat subterranean process of bar

and bench politics, in which there is little popular control.78

Michael Gerhardt echoes this concern, pointing out that increased roles for “nonpolitical

entities” like commissions of experts risks “insulating the decision making on such matters from

meaningful public scrutiny and accountability.” He further emphasizes that “the members of such

commissions might be prone to many of the same pressures that political leaders must deal with,

attainment, other significant characteristics.77 Richard A. Watson and Rondal G. Downing, The Politics of the Bench and the Bar: Judicial Selection under the Missouri Nonpartisan Court Plan (New York: Wiley, 1969), as cited in White Paper Task Force (2002): 397.78 Watson and Downing (1969), as cited in White Paper Task Force (2002): 398. Also cite Diana Skyes, in U Toledo conference [bb: not sure what this is]

37


such as interest group and political party entreaties and issue salience, but [are] no more capable

(and perhaps less so) in dealing with them competently.”79

The core insight here is that the lack of partisan pressures does not actually translate into

a protection from improper pressures. We still must ask what pressures operate to constitute the

representational warrant. Getting rid of partisan pressures in the context of an election only begs

the question of what the new pressures are. Pressures there must be, as long as judgeships are

coveted.

Beyond the politics of the retention commissions, judges in retention elections are

vulnerable to yet other inappropriate pressures. For example, interest groups can, and do, get

involved in these elections, and may characterize judges as “opposing family values” or “caring

only for big business” without necessarily being obliged to offer an alternative discussion of how

they would approach legal topics as a political party presumably would.80

The failures of the retention system are directly related to their effort to protect the legal

values by undermining the pressures associated with campaigns. When Shapiro calls these

devices “clumsy institutions” meant to protect both the legal and political values, he misses that

the devices which are used to protect judicial impartiality in the electoral context—speech codes,

campaign finance, and partisan identification restrictions—do not actually support the legal

values, but rather undermine the cues by which voters make responsible political choices in the

first place. These devices leave voters entirely exposed to the vulnerabilities of their office,

without necessarily protecting the legal values. This makes it very difficult to claim that elections,

however constituted, offer a real expression of the will of the people on legal questions.

For this reason, some scholars have defended partisan elections as better able to protect

judicial independence precisely because of the role of parties in creating a broad source of

accountability for the judge (as opposed to accountability to single-issue groups or rich

79 Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (Durham: Duke University Press, 2000), 260.80 Dimino (2004): 808.

38


financers).81 But whether partisan or non-partisan, judicial elections ultimately do not allow for a

representative construction of the public’s relationship to the law. When they are conducted as

regular elections, the financing, cues, and coalescing of public opinion necessary to actually get

information from elections misfire, as they do not offer cues on the actual judgments that voters

need to make. When they are regulated so as to provide for impartiality and non-contestation, the

elections are vulnerable to capture by small interest groups, to low turnout, to utter lack of any

knowledge whatsoever, and to conflicting political messages. Judicial elections, no matter how

they are structured, are simply not an effective way for achieving a representative judiciary.

81 Dubois (1980).

39

Legal Values and Political Process: the Conflict of Norms in ... PPW Judicial... · Web viewBruce...

Documents

Transcript of Legal Values and Political Process: the Conflict of Norms in ... PPW Judicial... · Web viewBruce...