Rethinking Politics and Judicial Selection during Contentious Times

Students of judicial are living through interesting times. Consider, for example, continuing skirmishes on same-sex marriage front in culture wars. In November 2003 (and again in February 2004), 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 Union Address, President George W. Bush characterized such decisions as result of [a]ctivist judges.... forcing their arbitrary will upon and warned that the only alternative left to might be a federal constitutional amendment to bulwark 1996 federal Defense of Marriage Act. (2) Then, in February 2004, San Francisco Mayor Gavin Newsom, citing 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, Proposition 22 Legal Defense and Education Fund--backed by Alliance Defense Fund--and Campaign for California Families, went to California Superior Court, arguing that San Francisco was violating 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 law on their side. And abound. In this highly charged environment, how are we to make sense of debates over 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 comparatively tranquil precincts of academia, several salutary developments over past decade serve as useful signposts indicating how we might think more clearly about knotty issue of selecting state judges. IT'S THE SORT OF POLITICS, STUPID First and foremost, some students of judicial have sought to sophisticate (or one might say complicate) concept of as that activity pertains to what judges do and how to select judges. Our key insight is comprehending that not all politics is same. Scholars almost universally acknowledge that no procedure can be devoid of politics. Merit selection has a nice neutral ring, but such procedures turn out in practice to merely shift 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 is continuation of by other means. (5) It is simply delusional to attempt to purge from 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 judges who do publics' business ought not to be removed from electoral politics. Here's rub: What do we mean by politics? It's Context that Counts Politicization is one species of politics. However, species is not coextensive with genus. In certain contexts, of judicial can become politicized. That is, under certain circumstances, state judicial elections occasionally can become metaphorical crocodiles in bathtub, as late Judge Otto Kaus vividly pictured hotly contested judicial elections. (6) Politicization of judicial elections occurs via infusion of large sums of cash, with all of 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. …