Academic journal article Texas Review of Law & Politics

Weighing Democracy and Judicial Legitimacy in Judicial Selection

Academic journal article Texas Review of Law & Politics

Weighing Democracy and Judicial Legitimacy in Judicial Selection

Article excerpt

INTRODUCTION

Yogi Berra is attributed with saying, "You can observe a lot by just watching."1 This Article seeks to "re-watch" the centuries old American debate-should judges be elected or appointed-and "observe" that it largely may have been asking the wrong question.

In 2015, the U.S. Supreme Court acknowledged,

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted "the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." Jefferson thought that making judges "dependent on none but themselves" ran counter to the principle of "a government founded on the public will."2

The debate over how judges are selected is a robust one and continues today in decisional law and academic literature. The focus is primarily on elections. What is the impact, both on voters and on judicial behavior, of money? of campaigning based on issues the judge might rule upon? of aggressive advertising? of partisan affiliation? Are judicial elections different from other elections? Should they be?

The underlying narrative is one about what contemporary theorists call "legitimacy." Essential to a functioning democracy is a judicial function seen as legitimate-meaning it is trusted even when it rules in controversial or unpopular ways.

The thesis of this Article is that engaging in the debate over how judges should be selected is more important now than ever, but that what has emerged so far is a chaotic and contradictory data set. The solution to this apparent Gordian knot is to shift focus to an earlier process juncture-being precise, objective, apolitical, and unforgiving in screening who is qualified to be considered to be a judge.

The stakes today are higher than they have ever been. over two centuries ago, Hamilton and Jefferson had a conversation about balancing the values of democracy and justice. What is the more important system value-an accountable judge or an independent judge? The conundrum goes to the essence of what a judiciary should be in a democracy. Can we trust a judge who has to answer to the people? Can we trust a judge who does not have to answer to the people?3 And contemporaneously with addressing that philosophical riddle, the Founders embedded in the Constitution a thrice-memorialized democratic check on potentially autocratic judges-the jury.4 But today the jury has all but disappeared:

[J] uries hear . . . around one to four percent of criminal cases in federal and state courts and hear less than one percent of civil cases in federal and state courts. . . . Even when juries hear cases, judges often second-guess them, taking cases from them using procedures that did not exist at the time of the founding.5

So today the manner of judicial selection often is the only democratic check on potentially autocratic power in the judicial branch.

Little clarity has come from the academic and judicial focus on whether-and if so, how-judges should be elected. Much study has been given to the impact on the perceived legitimacy of the courts from electing judges. Much study has looked at the increased politicization of the judicial appointment process. And read collectively, the body of work approaches being oxymoronic.

That is not to say that the work is flawed. Rather, correctly-structured study of whether legitimacy is enhanced by electing or appointing judges should not come to a clear answer if it turns out that picking one manner of judicial selection or the other does not materially matter to balancing democracy, justice, and legitimacy.

There is a recent anecdotal case study concretely illustrating precisely that-that the manner of judicial selection in fact may not matter to the ultimate legitimacy of the judiciary. Consider the firestorm of reaction to California Judge Aaron Persky after the sentencing hearing of convicted rapist and former Stanford swimmer Brock Turner. …

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