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Elected Judges and the Conservative Dilemma

by robert f. drinan, sj. professor george d. brown

Father Drinan had an abiding interest in justice. This article grew out of the inaugural lecture by Drinan chair holder George Brown, and deals with the core issue of the judicial process and the absolute necessity that courts be just and be perceived as just.


Most of the judges in American 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. They decry the “politicization” of the judiciary. It is true that states with elected judges have in place mechanisms to regulate judicial elections, what candidates say and how they raise money, for example.


However, these mechanisms—based on the American Bar Association’s Model Code of Judicial Conduct—have frequently been invalidated by the courts. 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’s force is at its zenith. 


Although this development predates it, the Supreme Court decision in Republican Party of Minnesota v. White gave significant momentum to the attack on the Canons and the state rules derived from them. White struck down Minnesota’s Announce Clause, which stated that a judicial candidate shall not “announce his or her views on disputed legal or political issues.” Since White, the Canons have been under, often successful, siege. A familiar pattern has emerged. The challenges are brought by conservative candidates and groups, usually represented by prominent conservative lawyer James Bopp. 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 Supreme Court Justices Antonin Scalia and Clarence Thomas in campaign finance cases. 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,” they must accord judicial candidates the full panoply of the First Amendment protections that would apply to all other elections. As Justice Anthony Kennedy put it,“[A] state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech.” For the challengers, defenders of the Canons are trying to prevent the politicization of politics, like King Canute trying to hold back the sea.


I present an alternative conservative position. My arguments are based initially 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 protecting individual rights. If the election of state judges has reached a point that threatens the rights protection capability of state courts, the entire conceptual framework of judicial federalism is placed in doubt.


Two other aspects of federalism are invoked to place the debate in its policy context. The first is the importance of the states’ ability to structure their institutions. As Justice Sandra Day O’Connor stated, “It is in the manner that a state structures its government that it defines itself as a sovereign.” I contend that structuring extends beyond the choice to have an elected judiciary to the manner of its election. The second is the importance of the “laboratory” function of states within a federal system. The election of judges is a good area for states to perform this function. There is widespread disagreement over how to regulate the election of judges, indeed, whether it can or should be regulated in a manner at all different from the election of other officials.


The debate over regulating judicial elections does not admit of easy answers. Among the questions that arise are the following:


• When it comes to First Amendment rights of candidates and voters, are all elections alike, or can differences in the offices to be chosen lead to different degrees of regulation?


• If the answer is potentially yes, just how different is the judicial function from that of legislators? Are they similar in that they both make policy, or are adjudication/application of law fundamentally different from legislative making of law? What about the fact that legislators have constituencies, while judges, in theory, do not?


• In our constitutional system, what, if any, are the limits of a popular control of the judiciary through the electoral process? Is a point reached at which the due process rights of litigants are threatened?


• Of what relevance is the possible view that choosing an adjudicator is a political act, but the process of adjudication is not? Might it be said that judges derive their legitimacy from the office itself, not from their mode of selection?


• Does the practice of campaign contributions from potential parties also threaten due process? How can a campaign be run without money, assuming no public financing?


What guidelines can be derived from campaign finance cases, beginning with Buckley v. Valeo, and their emphasis on the prevention of corruption and the appearance of corruption as important state interests in the context of First Amendment limits on state regulations of campaign practices?


My focus is not on whether a particular regulation is valid, but rather on whether any regulation is valid. At this point in the debate, I think we need to focus more on the questions than the answers.


My main target audience is legal conservatives, particularly those who view most White developments as a long overdue removal of impediments to democracy in the area of judicial selection. I think the conservative position should be far more nuanced, based on a sense of the constitutional role of state courts, as well as the constitutional rights of state court candidates. There is always a risk in attempting to juxtapose structural, seemingly abstract values, such as federalism, with the concrete rights of those who, for example,wish to campaign. But there is another group of rightholders very much in the picture: those who must appear before those candidates once they become judges, and whose personal interests in due process must also be considered. Perhaps this debate is an example of the scenario envisaged by Justice Stephen Breyer in an important campaign finance opinion: one where constitutional interests lie on both sides of the equation. In any event, I hope to provoke the debate toward some agreement on the range of interests at stake.