Judicial Reform as a Tug of War: How Ideological Differences between Politicians and the Bar Explain Attempts at Judicial Reform

By Bonica, Adam; Sen, Maya | Vanderbilt Law Review, November 2017 | Go to article overview

Judicial Reform as a Tug of War: How Ideological Differences between Politicians and the Bar Explain Attempts at Judicial Reform


Bonica, Adam, Sen, Maya, Vanderbilt Law Review


Introduction

In 2001, the Florida Supreme Court gained national notoriety when it ordered the initial recounting of ballots in the 2000 presidential election race between Al Gore and George W. Bush-prolonging the election and leading to the eventual involvement of the U.S. Supreme Court. For many Democrats and liberals, the involvement of the Florida court was a welcome revival of their waning hopes for the White House. But for many Republicans and conservatives, the actions of the Florida Supreme Court in ordering a recount were tantamount to nothing more than an outrageous involvement of a liberal "activist" court in the election process. This anger soon turned to action: in response, the state legislature, with the support of then-Governor Jeb Bush, a Republican, enacted several reform measures designed to lessen the power of the Florida Bar Association over the Florida Supreme Court. These reforms, in tandem with years of Republican governors, have scaled back the liberal nature of the court. In 2001, the state supreme court was comprised of seven Democrats; today, it is comprised of four Republicans, two Democrats, and one justice jointly nominated by an outgoing Democrat and an incoming Republican. No longer is the Florida Supreme Court a solidly liberal institution.

The case of the Florida Supreme Court illustrates the important issue of judicial reform, which we address in this Article. How states choose their judges is a product of deep political forces and tensions, and political actors may have strong reasons to favor one kind of selection mechanism over another. In addition, and again illustrated by the case of Florida, these circumstances can change depending not just on who is in power, but which way the bar leans. Thus, in the case of Florida, the perceived "liberal bias" of the Florida Bar Association led the state's Republican political establishment to attempt to reduce its influence. This has been echoed in many other states, several of which have moved to reduce what they perceive to be the undue influence of a "liberal" bar.

We incorporate these ideas into a broad, generalizable argument that both explains and predicts attempts at judicial reform. Specifically, we explore various dynamics created by ideological disagreement between the bar and political actors, in tandem with existing judicial selection mechanisms. Our argument is simple: the more liberal the bar and the more conservative political actors, the greater the incentives political actors will have to introduce ideology into judicial selection and to limit the formal role played by the bar in judicial selection. (And, vice versa, the more conservative the bar and the more liberal political actors, the greater the incentive political actors will have to introduce ideology into judicial selection.) The actual sequence of events necessarily depends on the existing judicial selection mechanisms. For example, as we argue below, conservatives would be loath to move away from a judicial selection mechanism that naturally favors them, as would liberals. Thus, we explore the consequences of our framework in terms of efforts to reform existing judicial selection mechanisms, oftentimes in the context of political attempts to move away from merit-oriented commissions.

We note that our arguments here bypass some of the normative considerations commonly raised by scholars of judicial reform-which tend to center around judicial independence, the "quality" of candidates to judicial office, and whether judges are unduly influenced by partisanship or campaigning concerns. While those are, of course, salient concerns, our arguments here center more on what kinds of selection mechanisms will benefit political parties from their strategic perspective. That is, Democrats will prefer more liberal judges and Republicans will prefer more conservative judges. Indeed, our argument is that it is the ideology of the judiciary-as opposed to genuine concerns about legitimacy or qualifications-that ultimately shape political actors' preferences on how judges should be selected, perhaps superseding other considerations. …

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