The Atlantic has been running a series on judicial elections. There is no escape from politics in judicial selection. Holmesian legal realism tells us that the prejudices of men have had more impact than the syllogism in the life of the law. We neither can nor should escape from politics in selecting judges: that is we are entitled to know where their sympathies lie and where they stand on the major policy concerns that are likely to come before them. Attitude to the death penalty, abortion, affirmative action, campaign finance, `tort reform’, etc. is certainly a proper area of inquiry for those who nominate, confirm, and vote for judges.
Judicial independence is also of great importance. A judge has responsibilities that go far beyond the interests of contributors, elected officials, and any particular group of voters. Within the broad confines of the law a judge should be free during her term in office to make a principled judgment that takes into account the public interest, the proper balance of forces among branches of government, etc. The biggest challenge is that if a term is limited the judgment of whoever decides on renewal is likely to weigh heavily on the shoulders of the judge who wants to keep the job. In an era when term limits have been popular for legislative and executive branch figures we will not see a move to federal life tenure. `Political’ choices are certain to remain with us – whether in retention elections or political nomination/confirmation battles like those which have roiled New Jersey politics since Chris Christie was elected Governor.
This campaign video advertisement for Texas Supreme Court justice Don Willett describes him as the “most conservative” member of the court. He is pictured reading Bible stories to his daughter. Like the Code of Conduct for United States Judges, the Texas Code in Canon 3(a) (1) provides ” A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.” Does the video raise concerns about Willett’s impartiality or partisanship? Is it proper to campaign as the most liberal? most conservative?