Political judges and popular justice: a conservative victory or a conservative dilemma?

• Author: Brown, George D.

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.

TABLE OF CONTENTS INTRODUCTION I. THE TRANSFORMATION OF THE AMERICAN JUDICIARY--IS IT REAL? IS IT A PROBLEM? A. Politicization--The New Judicial Campaigns B. The Fall of the Canons and the Rise of the Challengers C. Is Politicization Bad? II. FEDERALISM AND THE STATE COURTS--A PRESUMPTIVE CONSERVATIVE POSITION AGAINST POLITICIZATION A. Judicial Federalism--The Parity Debate B. From Judicial Federalism to General Federalism: Difference and Experimentation 1. Difference as a Value in Itself 2. Experimentation: The Laboratory Theory at Work 3. Who Are the True Federalists in the Judicial Election Debate? III. REBUTTING THE PRESUMPTION--THE CHALLENGERS AS THE TRUE CONSERVATIVES A. The Campaign Finance Reform Trap 1. Conservatives and Campaign Finance Reform 2. Entrenchment 3. Judicial Campaign Regulation as Social Engineering B. Popular Control Over the Judiciary and Conservative Values C. The Challengers' Trump Card--An Analysis and Critique of White 1. The Decision 2. A Critique of White and the Question of How Broadly To Read It IV. THE POST- WHITE WORLD CONCLUSION INTRODUCTION

What follows is a polemic on the 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. This Article seeks to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. With this policy perspective in place, this Article then examines the law concerning elected judges, focusing on the Supreme Court decision in Republican Party of Minnesota v. White, (1) the major victory for what is currently viewed as the conservative position. This Article argues that White rests on flawed premises and should be narrowly construed.

Most of the judges in America are elected. (2) Yet, the institution of the elected judiciary is in trouble, perhaps in crisis. (3) The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. (4) It is true that states with elected judges have had in place mechanisms to regulate judicial elections: what candidates say and how they raise money, for example. These mechanisms--based on the American Bar Association's Model Code of Judicial Conduct (Canons) (5)--have increasingly been invalidated by the courts, however. (6) Obviously, governmental regulation of political activities raises serious First Amendment problems, particularly in the context of elections where, the Supreme Court has said, the Amendment has its fullest and most urgent application. (7)

Although this development predates it, (8) the Supreme Court decision in White gave enormous momentum to the attack on the Canons and the state rules derived from them. (9) The Court, by a majority of five to four, struck down the Minnesota Code of Judicial Conduct's Announce Clause, which stated that a judicial candidate shall not "announce his or her views on disputed legal or political issues." (10) Since White, the Canons have been under siege. A familiar pattern has emerged. The challenges are brought by conservative candidates and groups, often represented by prominent conservative lawyer James Bopp. (11) The state judicial establishment, bar associations, and reformers line up on the other side, either as parties or amici. The battles bear a close resemblance to those fought over campaign finance reform. Indeed, the issues coalesce, with conservatives rallying under the First Amendment banner in tones that evoke the strong dissents of Justices Scalia and Thomas in campaign finance cases. (12) The challengers have argued, in essence, that states cannot have it both ways. If states choose to "tap the energy and the legitimizing power of the democratic process," (13) they must accord judicial candidates the full panoply of the First Amendment protections that would apply to all other elections. As Justice Kennedy put it, "[t]he state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech." (14) For the challengers, defenders of the Canons are trying to prevent the politicization of politics, like King Canute trying to hold back the sea.

This Article presents an alternative conservative position. (15) The policy arguments are based in federalism, certainly a bedrock conservative doctrine. The starting premise is that conservatives have a substantial stake in the health and vitality of the state courts. Doctrines of judicial federalism are central to concepts of federalism in general, and those doctrines rest on the notion of parity--particularly the view that state courts are equally as capable as the "independent" federal judiciary of providing fair trials and protecting individual rights. (16) State courts play a fundamental role in the American constitutional order. If the election of state judges has somehow reached a point that threatens the capability of state courts, the entire conceptual framework of judicial federalism is placed in doubt.

Two other aspects of federalism are invoked. The first is the importance of the states' ability to structure their institutions. As Justice O'Connor stated, "[t]hrough the structure of its government, and the character of those who exercise government authority, a state defines itself as sovereign." (17) There is little dispute, at least so far, that states can choose to have elected judges. (18) Yet both the majority and dissenting opinions in White clearly view those with whom they disagree as seeking to undermine the institution. (19)

The second federalism question is how far the states can experiment in the manner of selection. Judicial selection, with its complex issues of law and policy, is an ideal area for states to fulfill their laboratory role. How to reconcile the elected judiciary, and the values of accountability, with rule of law values, particularly the need to afford litigants due process, is one of the fundamental questions facing the American legal system. Pre-White, state regulation of judicial elections permitted different approaches to calibrating the values. After White, the road seems open for the challengers to achieve a single, nationwide model: a politicized judiciary that is, essentially, another political branch. Beyond both federalism points is the importance of public perception of the state judiciaries as viable entities. Perception and symbolism play important roles in federalism debates, particularly in the recurring question of whether states are inferior entities or co-equal sovereigns with the national government. (20)

Law trumps policy, of course, assuming for purposes of argument that the distinction is clean cut. White represents "the law," but the decision is seriously flawed as well as sharply divided. The majority virtually ignored fundamental precepts of separation of powers in treating the judiciary as a political branch because it (sometimes) makes policy. (21) The dissenters did not have an easy time either, relying on the troubling distinction between political and nonpolitical elections. (22)

The questions raised by the politicization debate are not easy ones. Indeed, the debate would benefit if participants recognized just how hard these questions are. They include the following: (1) Can states "square the circle": Can they choose an elected judiciary while conducting the elections in a manner that makes it look like an appointed one?; (2) Should White be broadly read, to the point of invalidating all Canon-based regulation of judicial elections?; (3) Can there be a distinction between political and nonpolitical elections, or does the First Amendment apply with equal force in all contexts? In other words, can differences in the offices to be chosen lead to different degrees of regulation?; (4) If the answer is potentially yes, just how different is the judicial function from that of legislation? Is it minimal in that they both make policy, or great in that adjudication/application of law is fundamentally different from legislative making of law? What about the fact that legislators have constituencies, while...