The Paradox of Judicial Elections

David E. Pozen, Yale Law School

Abstract

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were known as relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, partisan rancor, and political speech has forever disturbed the traditional paradigm. In the “new era,” as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This paper takes the new era as an opportunity to advance our understanding of elective versus non-elective judiciaries. In revisiting this classic debate, the paper aims to make three main contributions. First, it offers a new analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central, principled concerns from the more contingent, instrumental ones. The “majoritarian difficulty,” I contend, ought to be considered the core problematic. Second, applying this taxonomy, I show how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.

Third, I explore three deep—and overlooked—paradoxes that emerge from this cleavage: (1) at the same time that judicial elections are becoming more radical within the American experience of judicial selection, they are becoming more normal from other perspectives; (2) as judicial elections achieve greater integrity as elections, the integrity of our broader democratic processes may be expected to suffer; and (3) while to some scholars, elective judiciaries appear to hold out new potential for legitimizing countermajoritarian interpretation, their very nature as elective bodies undercuts their capacity and inclination ever to realize this potential. Those who would assign the state courts a guardian role over individual rights and constitutional values, I conclude, have no choice but to advocate wholesale dismantlement of judicial elections.