The real constitutional problem with state judicial selection: due process, judicial retention, and the dangers of popular constitutionalism.

AuthorRedish, Martin H.
PositionIntroduction through II. Caperton and Gratitude as a Due Process Violation: Too Much and Not Enough, p. 1-33

Abstract

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant's right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude--that is, the fear that the Justice would decide his contributor's case differently because he was grateful for the litigant's generous support. The Court's focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: all judges--even federal judges protected by Article III--owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge because this is the context in which the very real threat to decisional independence arises. A judge's fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge's independent assessment of the facts and law. This Article argues that life tenure, or, at the very least, some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness, both of which lie at the core of the due process guarantee.

TABLE OF CONTENTS Introduction I. Judicial Selection And Retention: The Current Landscape A. The Topography of State Judicial Selection and Retention B. The Problem of Judicial Retention II. Caperton and Gratitude as a Due Process Violation: Too Much and Not Enough. III. Popularly Based Retention Methods and American Constitutionalism A. Appearance of Fairness B. "Micro" Constitutionalism: The Value of an Independent Adjudicator C. "Macro" Constitutionalism: Understanding the Dangers of Popular Constitutionalism IV. Case Studies: When Voters and Judges Collide A. Rose Bird and "Soft on Crime" B. Gay Marriage in Iowa C. Contrasts with Federal Court, and Lessons Learned Conclusion Introduction

In Caperton v. A.T. Massey Coal Co., the Supreme Court found for the first time that conduct related to a judicial election campaign could violate a litigant's due process rights. (1) The Court held that "serious risk of actual bias" that was "too high to be constitutionally tolerable" had resulted when recently elected West Virginia Supreme Court of Appeals Justice Brent Benjamin adjudicated an appeal involving his biggest campaign contributor, coal executive Don Blankenship. (2) Blankenship had spent millions to support Benjamin's successful bid for the high court, knowing his case would come before the court shortly after the election. (3)

The due process danger that the Caperton Court identified rests on a fear of retrospective gratitude--that is, the fear that Justice Benjamin might be so grateful for the generous campaign support that he would decide Blankenship's case differently. Although that was undoubtedly within the realm of possibility, as a constitutional matter, the logic of the Court's rationale may extend far beyond what the Court intended. The idea that Justice Benjamin might feel obligated to decide in favor of someone who had "a significant and disproportionate influence in placing" him on the court (4) appears indistinguishable from a variety of well accepted forms of backward-looking gratitude that judges may encounter on the bench, short of quid pro quo bribery. For example, an Article III judge would presumably be continually grateful to the president responsible for her lifetime appointment. Yet it has always been understood that the Constitution somehow tolerates that risk: federal judges are not constitutionally barred from hearing cases involving the president who appointed them. Indeed, any other conclusion might well lead to chaotic results.

This exclusive focus on retrospective electoral gratitude as a threat to independent adjudication renders Caperton simultaneously overinclusive and underinclusive. The decision is overinclusive because it encompasses judicial conduct and relationships that, as a general matter, have never been thought to violate due process. Despite attempts to confine the decision to "extreme facts," Justice Kennedy's majority opinion offers an amorphous and potentially expansive basis for finding due process violations. (5) This leaves it unclear how much spending on a judge's behalf is sufficient to violate due process if a judge later hears a campaign supporter's case, whether the supporter is a litigant or attorney.

Yet, in another sense, Caperton is simultaneously underinclusive because it focuses on election-related retrospective gratitude, while simultaneously ignoring the far greater prospective constitutional threats inherent in existing methods of state judicial selection. (6) For the most part, the constitutional problem with state judicial selection is not the initial selection process. Every state judicial position has to be filled somehow. Whether it is by gubernatorial appointment, election, or some form of so-called "merit" selection process, judges owe their appointment to some person or group. Moreover, even in the federal system, we have long accepted the influence of some form of majoritarian interests on the initial selection process. After all, both the president who appoints the judge and the senators who confirm the appointment are themselves the product of majoritarian selection processes. Thus, whatever one thinks of the comparative merits of the various selection alternatives purely as a policy matter, foundational constitutional interests are, for the most part, unaffected by the ultimate choice of selection methodology. (7)

Of far greater constitutional concern on a number of levels is the method of deciding upon judicial retention--the method by which the judge's continuation in office is determined. It is here that all of the constitutional concerns about judicial independence converge, because it is here that the very real threat exists that deciding a particular case a certain way may have seriously negative consequences on the adjudicator's continued employment. This threat may well influence the judge to decide the case in a manner different from her preferred resolution of the matter, purely on the case's merits. For example, when a judge fears that her preferred resolution of a case will be substantially unpopular with the electorate, determining retention by election seriously threatens the fair and neutral determination of that case. Moreover, in cases involving constitutional rights, judicial concern for electoral accountability effectively turns foundational precepts of American constitutionalism--which is firmly grounded in notions of counter-majoritarianism--on their heads. Similarly, if retention rests in the hands of an elected official or group of officials, the fear that the judge's preferred resolution will offend or annoy those officials could have the same skewing effect on the judge's decision-making process.

No doubt numerous cases will arise in which neither the electorate nor elected officials will have the slightest interest in the outcome. But there is no simple way, ex ante, to distinguish such cases from those which will trigger electoral backlash, and in any event, there is no way to insulate the adjudicator's independence solely in those cases where such fears are found to be realistic. As long as a judge knows that the voting public, legislature, or executive holds the power to remove her as a result of her decisions on the bench, the very real possibility exists that she will--if only subconsciously--shape those decisions to win their favor, or at least to avoid offending them. That danger, far more than the possibility of gratitude, presents a threat to due process "too high to be constitutionally tolerable." (8) Yet the Supreme Court has never seriously considered the possibility that popularly based methods for determining state judicial retention are constitutionally suspect. This hesitancy appears to spring, in varying degrees, from an ill-defined federalism concern, (9) a desire to avoid impugning the integrity of state court judges, and a reluctance to upset the inertia of long-established judicial selection systems. (10) Perhaps more fundamentally, the judicial unwillingness to explore the serious constitutional flaws in popularly grounded methods of state judicial retention may flow from a sorely misguided belief in what several scholars have described as "popular constitutionalism"--an ill-defined notion that the Constitution belongs to "the people" and that judicial review by judges insulated from the electoral process is therefore undemocratic and illegitimate. (11)

Although scholarly advocates of this theory are frustratingly short on details as to exactly how constitutional interpretation is to be exercised by "the people," (12) it is certainly plausible to view constitutional interpretation by judges chosen by the electorate as the closest feasible alternative. As the carefully structured system of federal judicial independence clearly...

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