As longtime readers of this blog know, I despise judicial elections, which destroy legal norms and create extensive conflicts of interest.
But things could get even worse -- the Supreme Court is considering a case from West Virginia about whether a state supreme court justice there should have recused himself from a case involving a coal mining company whose chief executive spent $3 million to defeat the justice in a previous election.
It's an impossible situation. On the one hand, the recusal seems like common sense -- the justice certainly could have personal reasons to rule against the company. But on the other hand, a ruling that judges have to recuse themselves in such cases could have the perverse effect of drawing more money into the system. Attorneys, companies, and individuals might choose to make large contributions as an insurance policy so that they would have a basis to demand recusals by ideologically hostile judges in future court cases.
The only solution, of course, is for states to end judicial elections altogether. But I have little hope of that happening. Taking away the public's right to vote on candidates of any kind is virtually impossible. (Likewise, there's no way that the Roberts court would take such a dramatic step, nor is it their place to do so.)
Brendan's closing parenthetical provides an interesting example of how liberal opinion has shifted over the last forty years. I was in law school at the end of the Warren Court and the beginning of the Burger Court. In those years hardly anyone would have said it was not the Supreme Court's role to correct poor policy choices by states. Rather, considerable ingenuity would have been applied to discover a Constitutional rationale for imposing on the states a mechanism for judicial selection, a rule concerning contributions to judicial elections, or at a minimum a rule concerning recusals in cases involving contributors. And more than likely, the Court would have adopted that rationale.
Forty years of movement in the direction of strict construction has resulted in even center left observers like Brendan conceding that there are wrongs for which no remedy exists under the U.S. Constitution.
Which probably means it's about time for the pendulum to swing.
Posted by: Rob | February 16, 2009 at 11:32 AM
The problems Brendan cites also apply to elected legislators. And, nobody expects a Congressman to recuse himself from a vote that helps a campaign donor. That's why conservatives want government not have so much power to control so many parts of our lives.
Posted by: David | February 17, 2009 at 11:49 AM
I love legal elections, because judges also have to face up to the reality of dissatisfaction due to high crime rates, police brutality, and high taxes to fund public defenders. Yes, it is supposed to affect their decisions. Elections are preferable to widespread asassination. How else to you remove the rascals?
Posted by: Don Meaker | March 22, 2009 at 05:54 PM