Are Judicial Elections
Democracy-Enhancing?
David Pozen
IN HER CONTRIBUTION to this volume and in a recent book, Melinda Gann Hall charges the opponents of judicial elections with being “antidemocratic” (Hall, this volume). Blinded by their “unflattering view of voters” (ibid.) and in thrall to the Article III model of life-tenured executive appointment, these naysayers have, in her telling, ignored the empirical evidence. Hall’s own work has shown that campaigns for state high court judgeships now feature significant amounts of spending and competition, as well as fairly robust forms of political speech and participation (for example, Hall 2001). Yet at the same time as judicial elections have been going up and up on these standard legitimacy-conferring dimensions, the opposition has only doubled down, launching “a full-scale war” against the institution (Bonneau and Hall 2009, 1, 128).1 The legal community’s advocacy in this regard, Hall says, “falls just short of zealotry in its condemnation of democratic politics” (Hall, this volume).
By framing the debate over state judicial selection as one between those who would privilege democratic values and those who would privilege other (unnamed) values in the method they favor, Hall reprises a classic dichotomy that has defined this literature. On the one hand, it is assumed, choosing judges by election facilitates self-government by empowering the people to hold accountable these important officials. Whatever else they might be, elections are “democracy-enhancing institutions” (Bonneau and Hall 2009, 2). On the other hand, it is argued, choosing judges by election undermines their independence and therefore threatens values such as professionalism, legality,
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