Academic journal article Missouri Law Review

A Plea for Reality

Academic journal article Missouri Law Review

A Plea for Reality

Article excerpt

I.   THE ENDLESS DEBATE
II.  A REPLY TO ADVOCACY AT THE SYMPOSIUM
III. ARE JUDICIAL ELECTIONS LIKE OTHER ELECTIONS, SHOULD THEY BE?
IV.  THE LIVELY, THORNY PROBLEM OF RECUSAL BECAUSE OF CAMPAIGN
     CONDUCT AND/OR CAMPAIGN FUNDING
V.   REALISTIC EXPECTATIONS
VI.  STEPS TO REDUCE THE PROBLEMATIC ASPECTS OF JUDICIAL ELECTIONS
VII. HONORING FIFTEEN CHIEF JUSTICES

Thank you for the privilege and the pleasure of joining you, in the best possible state for any discussion of judicial selection and blessedly at a distinguished law school. For me, after twenty-five years of involvement in the judicial election scene and four weeks after retiring from teaching--but not, I hope, from continued involvement--this is a unique opportunity to share views, air questions, consider the ever-evolving changes and challenges, and speak bluntly on a few points. I treasure the friendships I have built with others similarly involved, and I hope that my comments, some of which may seem unrestrained, are taken in the spirit that underlies them. My plea for reality stems from the view that this subject suffers from much myth and much spin. Myth matters when it differs from reality about where we are and how we got here. Spin matters because it interferes with honest dialog about where we are and what, if any, change is needed.

What should get our attention? That is always a question of priorities and relative relevance. Here, what is "relevant" is what may help reduce the problems in judicial selection.

I. THE ENDLESS DEBATE (2)

Legend has it that a long-ago Chief Justice of Texas said, "No judicial selection system is worth a damn." This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

   the states have never used a common method.... [o]ne can identify
   almost as many different methods ... as there are states in the
   Union.... Moreover, most States have changed the way they choose
   judges at some point in their history, often more than once. (3)

My focus is on judicial elections. Since I began work on them, I have adhered to agnosticism about methods of selection. (4) One reason is this: My writing and work aim at making a difference, but to say anything new on this subject seems almost impossible, and for the last generation the battles to change selection methods have been futile. (5) Of course past performance is no predictor of the future, but, as the chief justices formally resolved two years ago, "elections will stay in many and perhaps all of the states that have that system." (6) People who advocate ending contestable elections always point to some pending bill in some state (lately, Nevada), but for over one hundred years, the hurdles in turning proposals into constitutional amendments have been all but insuperable. (7)

The endless debate does have new elements. Some "merit" systems have recently suffered unusual confrontations between governors and nominating committees. (8) Also, we have new analyses drawing upon the actual operation of "merit" systems to argue that some are dominated (or even controlled) by the organized bar and that at least some actions have been partisan. (9) Further, unless the Tennessee legislature does this spring what it refused to do in 2008, its "merit" system for appellate judges will terminate in June 2009. This would be the first time for any jurisdiction to return to contestable elections after ending them. (10)

II. A REPLY TO ADVOCACY AT THE SYMPOSIUM

At the Symposium, some advocates urged judicial elections as the only way--or at least the best way--to assure accountability; that advocacy requires response. Without diminishing my decades-long adherence to agnosticism about judicial selection methods, I submit six points in response to such advocacy. …

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