Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?

George D Brown, Boston College Law School

Abstract

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other “political” offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial “parity” debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts – and in perceptions of the quality of those courts. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.