Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?

Abstract

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal courts. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other "political" offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial "parity" debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts - and in perceptions of the quality of those courts. Broader issues of federalism are at stake as well - particularly the "laboratory" value of state experimentation in seeking the optimal balance between accountability and rule of law values. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.