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Why Judicial Elections Are Idiotic And Bad For Law

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Why Judicial Elections Are Idiotic And Bad For Law

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By Noah Feldman, Bloomberg News (TNS)

Judicial elections are idiotic — but 38 states have them in some form. The U.S. Supreme Court grappled Tuesday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

The justices’ questions were revealing — and they said more about their conception of the judicial role than about how to solve the issue in Williams-Yulee v. the Florida Bar. Justice Sonia Sotomayor, who seemed most sympathetic to the Florida regulation, drew lessons from her own experience. “It’s very, very, very rare,” she observed, “that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something, do whatever it is that I’m asking, that that lawyer will say no. Isn’t it inherent in the lawyer­-judge context that people are going to say yes?”

Obviously, Sotomayor is correct. And the instinct to obey the authority figure isn’t limited to the Supreme Court. Justice Stephen Breyer made the broader point drawing on his experience and that of his brother, a federal district judge in San Francisco: “It’s a sort of a joke,” he began, “but it’s so true in the experience of the court of appeals that I had, my brother in the district court, district court judges I know, in state and federal systems, that the normal response … by a lawyer to a judge in any minor request or, you know, something normal, the answer is yes.”

Pause for a moment to think of what this means. The justices are acknowledging that, relative to lawyers at least, they’re basically omnipotent. When they ask for something, they get it. In this sense, they are closer to princes or bishops than they are to ordinary public officials.

Justice Antonin Scalia’s line of questioning made the justices sounded more like cardinals. He asked one of the lawyers whether the state could regulate certain judicial activities because they were beneath the dignity of the judge. He described what he called “an interest in judicial dignity. There are certain things that are infra dignitatem, as we say.” Later in the argument he returned to the concept, asking the lawyer for the state whether he was “relying on” the judicial dignity argument — an invitation the lawyer declined.

Justice Elena Kagan, the past dean of the Harvard Law School (where she hired me, among other questionable decisions), wanted to know about the constitutionality of the federal canon of judicial ethics that prohibits judges from soliciting money on behalf of nonprofit groups. “Who cares whether I solicit funds on behalf of my old law school,” she asked. “It doesn’t have anything to do with what rulings I’m going to issue, who I’m going to favor, who I’m not going to favor.”

The justices, in other words, were clearly thinking about this case in terms of their own conception of what it means to be a judge. The context, however, makes things more complicated.

Today’s justices are careful to remain aloof from even the appearance of connection to politics. The idea that judges in the states must dirty their hands by running for office strikes the justices as undignified and even coercive.

For the court’s liberals, then, it’ll be tempting to uphold the Florida regulation on the ground that judicial elections are special. The trouble is that, deep down, the justices seem to understand that judicial elections are preposterous. Given that their very structure would seem to undercut the possibility of impartiality, it’s hard to say with a straight face that the state should be allowed to limit free speech to keep such elections “clean.”

On the other side of the scale lies the First Amendment, which applies with its greatest force when political speech in the balance. Justice Anthony Kennedy has been a leading voice on the current court arguing that free speech outweighs almost all campaign-finance restrictions. For him, it would be difficult to treat judges running for office differently from other candidates. His free-speech pronouncements have tended to be absolute rather than context specific. Any special solicitude for keeping elections clean would tend to support campaign- finance regulation.

Judicial elections are therefore problematic for Kennedy, too. His instincts may tell him that judges are different — and the justice who cares most about the concept of dignity can hardly be deaf to the concern of preserving the dignity of his office. Yet Kennedy’s jurisprudence points toward freedom of speech as an absolute value for electoral candidates. To announce a free-speech right for judicial elections would be to acknowledge that judicial elections are no different than any others.

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Noah Feldman is a Bloomberg View columnist. Readers may send him email at nfeldman7@bloomberg.net.

Photo: Scott* via Flickr

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9 Comments

  1. John Leland January 23, 2015

    As long as judges presume to make important policy decisions, they should be elected, because in a democracy, people who make important policy decisions should be elected. If judges genuinely followed a philosophy of judicial restraint and stopped preempting legislative decisions, then they could be selected in a nonpartisan manner, if there is such a thing. But that has never been how the U.S. judicial system has worked, and it is unlikely to change.
    It is to be noted that judicial appointments as they are now done are no more
    “apolitical;” than elections; they are simply less transparent and less open to popular input. Presidents and governors do not appoint judges on the basis of an impartial examination of their qualifications; they appoint them on the basis of “compatible judicial philosophies” i.e. agreement with their policy agendas. Likewise the U.S. senate and state bodies which have the power to confirm or reject judges do so on the same political basis.

    Reply
    1. FireBaron January 23, 2015

      Circular logic. Currently, in those states, anyone who can get enough qualifying signatures can appear on a ballot. Unless the local state laws have anything that specifically limits the candidates to practicing members of the State Bar, that means someone with almost no judicial experience could technically be elected as a judge.
      Also, as they are running for elected office, they will need to raise funds in order to compete. Who would provide this money? The same people who would be pleading cases before them.
      Frankly, there is no good workable solution, but here is something to try. Have a judge selected by the local state legislature to a five-year term. After that, the judge would be required to either reappear before the legislature to be reconfirmed or put up on a ballot on an up/down vote. If the candidate is not reconfirmed, or loses the up/down vote, the governor would nominate a new candidate and the process would start all over again. The only proviso I would add is a Judge not renewed or voted out would not be eligible for a pension from the state.

      Reply
      1. John Leland January 23, 2015

        Please explain why you believe the argument is circular. What I am saying is that choosing judges is a political process,whether by direct vote or by appointment, but as long as judges make political decisions (as they inevitably do as long as judicial review is part of our system) , it should be a political process.
        Your statement that unqualified judges can be elected does not invalidate either part of my argument. Your statement is an argument for requiring that all judicial candidates be required to have legal qualifications, which I think is a reasonable suggestion.
        As to campaign contributions, that is always part of politics in the U.S. The legislators you want to have the power to choose judges are also chosen in elections in which they have to raise money. The only difference would be that the connection between the campaign funds and the judicial appointments would be harder to trace. If judges who run for office are required to list all campaign contributions, at least the voters will know
        which interests the judges will be representing.

        Reply
    2. kenndeb January 23, 2015

      Term limits for all branches of government.

      Reply
  2. Whatmeworry January 23, 2015

    All elections do is force them to be accountable to the taxpayers to enforce the laws as written

    Reply
    1. Daniel Max Ketter January 24, 2015

      I was never accountable to my former employer, so I would be a hypocrite to expect these judges to follow suite.

      Reply
  3. Whatmeworry January 24, 2015

    All elections do is force them to not be accountable to the taxpayers to enforce the laws as written

    Reply
  4. charleo1 January 25, 2015

    It has always seemed to me, the idea of judges having to politic for office, defeats the idea, that we want as impartial arbiter, checking, and balancing the considerable power of the executive, and legislative branches as possible. And the specter of having judges vulnerable to the same kind of bare knuckled extortion that goes on continually in the other two, I believe tends to work against that. Indeed, the Framers of the Constitution seemed to be aiming at creating an insular institution. Unaffected by the hot rhetoric, and high stakes often surrounding the most contentious, and pivotal issues. Leaving judges immune from the backlash of the losing parties. And harder to influence, when they’ll not be needing the donations, and endorsements from this or that would be kingmaker, necessary to run for office. As in the case of the Supreme Court, ever. It’s hard to appreciate the difficulty the Founders must have had with this. Given their well known aversion to even accidentally creating a permanent, unaccountable body. Another Aristocracy, if you will.. That had the power to rule, strike down all, or part of, or modify a law duly passed and signed by the previous 2/3 of the government. But in their wisdom, and always seeking balance, they felt so compelled. Because they realized the vital importance of closure on issues. The importance of the final decision, in function. And also, a blessing of sort, from an equal, and completely independent body. So charged under The Constitution with that specific duty. Lent gravity to the law so enacted, so as to upheld even by it’s most vehement detractors, as the Law of the Land.

    Reply
  5. idamag January 26, 2015

    This state elects judges. Election or selection is not fair. We need some type of lottery with potential judges names. The Supreme Court needs a lot of changing. The only way it can be fair is the same way a lottery of qualified potentials and a limit of 6 months so there isn’t time for special interests to own the judges.

    Reply

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