The Different Complaints about Judicial Politics

November 3, 2014
posted by Bob Bauer

A solid case can be made that judges should not be picked in elections because forcing them to become candidates, and to campaign, taxes confidence in the courts. But many judges are picked by election and then the question becomes how much to bemoan, as do Rick Hasen and Dahlia Lithwick, the predictably aggressive campaigning that these candidates, their allies and their opponents may adopt to win. Campaigns are campaigns, and it is not easy to sort out which particular set of rules or standards should apply only to judicial contests. Expectations may well be different for judges, encapsulated in a sense that they should be above the political fray, but once they become candidates and are thrust into the middle of political contention, are those expectations realistic?

Another question is how many of the same critics troubled by the raw political behavior on display in judicial campaigns can maintain that position while calling attention to the “political” bias in judging. A “cataract of studies” have shown that judges’ partisan backgrounds and ideologies, among other factors, influence how they will decide issues which are standard subjects of political differences—issues like reproductive rights, or the role of markets or government, or policing methods. Eric Posner, “Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform,” 75 U. Chi. L. Rev. 853 (2008). In other words: issues that voters might care most about. And yet Hasen and Lithwick quote, critically, this passage from a judicial candidate’s appeal for votes:

I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative.

This is without question 100%-proof political brew, and yet the candidate could be said to be plain-spoken, simply saying what many hold to be self-evident. Rick Hasen certainly believes it to be true about decisions in voting rights cases. Voters holding this belief may feel entitled to have the question of political bias out in the open, where it can be weighed in their decision. If a candidate for judicial office intends to vote consistently in line with a certain politics, then why not hear it directly from her, rather than have her pretend that it is not the case and confuse or mislead voters about their choice? The alternative is to have a background conversation about the politicization of the judiciary while keeping out of the foreground any uncomfortable mention of the same, insisting on the very black-robed, blank-slate innocence that is in question.

Critics could answer that it still matters how campaigns are waged. Judges don’t have to campaign like other candidates, and we can still be suitably distressed by negative advertising, finding what is regrettable but unavoidable in other campaigns to be intolerable in judicial contests. But this is an objection grounded in a sense of decorum that has little to do with how competing interests view the stakes in judicial campaigns or what voters might find meaningful or motivating in deciding which candidates to support. The problem lies with the choice of elections, if it lies anywhere, rather than in how judicial candidates and their allies have chosen to campaign.

Hasen and Lithwick give well-chosen examples of nasty judicial campaign advertising on TV that made them “shudder.” Their reaction is understandable, but they may overstate the connection between the style of campaigning and diminished confidence in the judiciary. Voters might be more perturbed by the extent to which judges follow their political and ideological preferences in deciding cases. If that is the primary reason for a loss of confidence in the courts, then one can imagine a voter who will put up with the campaigns because they believe that they are entitled to be heard on political matters.

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