Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?

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. …