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.