Rethinking politics and judicial selection during contentious times.

• Author: Foster, James C.
• Position: Perspectives: Judicial Elections Versus Merit Elections

Students of judicial selection are living through interesting times. Consider, for example, the continuing skirmishes on the same-sex marriage front in the culture wars. In November 2003 (and again in February 2004), the Massachusetts Supreme Judicial Court read that State's constitution as requiring state recognition of marital unions between gay and lesbian couples. (1) In his January 2004 State of the Union Address, President George W. Bush characterized such decisions as the result of "[a]ctivist judges.... forcing their arbitrary will upon the people" and warned that "the only alternative left to the people" might be a federal constitutional amendment to bulwark the 1996 federal Defense of Marriage Act. (2) Then, in February 2004, San Francisco Mayor Gavin Newsom, citing the California Constitution's equal protection clause, authorized City Hall officials to begin licensing and officiating at marriages of same-sex couples. (3) Two groups opposed to Mayor Newsom's action, the Proposition 22 Legal Defense and Education Fund--backed by the Alliance Defense Fund--and the Campaign for California Families, went to the California Superior Court, arguing that San Francisco was violating the California Family Code and California Ballot Measure 22, adopted in November 2000, that limit marriage to a man and a woman. (4) Everyone in this contest, it seems, has the law on their side. And politics abound.

In this highly charged environment, how are we to make sense of debates over the best way to select state judges? The question does not lend itself to any single definitive answer. Any answer will also be essentially contestable, because different people will define "best" differently. Nevertheless, amidst the comparatively tranquil precincts of academia, several salutary developments over the past decade serve as useful signposts indicating how we might think more clearly about the knotty issue of selecting state judges.

IT'S THE SORT OF POLITICS, STUPID

First and foremost, some students of judicial selection have sought to sophisticate (or one might say complicate) the concept of politics as that activity pertains to what judges do and how to select judges. Our key insight is comprehending that not all "politics" is the same. Scholars almost universally acknowledge that no selection procedure can be devoid of politics. "Merit selection" has a nice neutral ring, but such procedures turn out in practice to merely shift the locus of politics, rather than eliminate it. Elections to fill or to retain incumbents in judicial positions can be thoroughly political whether partisan or nonpartisan. So, for openers, there is wide awareness that judicial selection is the continuation of politics by other means. (5) It is simply delusional to attempt to purge politics from the process by which we select state jurists. Nor is it desirable to do so. In a republic that at least aspires to be based on popular sovereignty, many--including myself--believe that the judges who do the publics' business ought not to be removed from electoral politics. Here's the rub: What do we mean by "politics?"

It's the Context that Counts

Politicization is one species of politics. However, the species is not coextensive with the genus. In certain contexts, the politics of judicial selection can become politicized. That is, under certain circumstances, state judicial elections occasionally can become metaphorical "crocodiles in the bathtub," as the late Judge Otto Kaus vividly pictured hotly contested judicial elections. (6) Politicization of judicial elections occurs via the infusion of large sums of cash, with all of the attendant media advertising, sound bites, and other trappings of contemporary American no-holds-barred electoral contests for executive and legislative posts. Not all judicial elections bite judges--in fact very few do so. Big spending on judicial elections is driven by controversy over specific judicial decisions. What generates controversy?

The answer to this question comes from a second insight, derived from a methodological development within the judicial politics subfield of political science awkwardly dubbed "historical/interpretive 'new institutionalism.'"(7) This understanding is that politicization results from the...