Law Commons^™

This Essay critiques the arguments leveled at judicial elections. For each criticism--which I have discovered through a reasonably thorough review of cases and law review commentary--I assess the degree to which the criticism is valid, and also the degree to which other judicial-selection methods fall prey to the same criticism. I argue that the flaws of judicial elections, though often considerable, are shared in large part by alternative selection systems. Beyond, however, being simply equivalent in malignity to other selection methods, elections have--or, rather, may have, depending on the content of judicial election campaigns--one advantage over other systems that instigated …

The realization that judicial ideology matters to case outcomes may have driven the judicial selection process to become increasingly ideological and partisan, but to some degree it has brought ideology and partisanship to bear on the selection process from the time of the Founding. As the authors note, “Presidents, senators, and

interest groups alike realize that the judges themselves are political.” Judging may in some ways be different from politics, but politicians’ judgments about judging most certainly are not.

Others have discussed exhaustively the merits and demerits of merit selection, and I do not intend in this essay to debate the“ success” or “failure,” per se, of merit selection since its introduction in Missouri in 1940. Instead, I wish to discuss the effect merit selection has on squelching public debate about the judiciary. Once that effect is demonstrated, I then wish to assess this antidemocratic tendency against the purported goal of merit selection: maintaining some measure of accountability in a selection system nonetheless designed to make judges confident enough in their independence to render decisions according to the law …

The question this Article seeks to answer is whether the First Amendment can maintain a distinction between the two types of races. Specifically, I discuss whether the governmental interests in maintaining an independent,

impartial judiciary and in protecting the appearance of the judiciary as independent and impartial can provide justification for the suppression of speech, where such suppression would be held impermissible in elections for

other offices. I conclude that it cannot. My recommendation, therefore, is to subject restrictions on legislative, executive, and judicial campaign speech to the same exacting scrutiny.