Are Judicial Elections Democracy-Enhancing?

David Pozen, Columbia Law School


In her contribution to this volume and in a recent book, Melinda Gann Hall charges the opponents of judicial elections with being "antidemocratic" (Hall 2010, 1). Blinded by their "very unflattering view of voters" (ibid., 2) 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 (e.g., 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). The legal community's advocacy in this regard, Hall says, "falls just short of zealotry in its condemnation of democratic politics" (2010, 3). 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, and impartiality. There is posited an inescapable tradeoff between the democratic benefits that judicial elections offer and the extrinsic costs they impose. Whether one supports or rejects their usage depends upon how one weighs this tradeoff. But is it so clear that judicial elections are, or could realistically ever be, democracy-enhancing institutions? As far as I can tell, none of the many fine scholars to have participated in the debate has taken care to explicate this presupposition or to subject it to critical scrutiny. This omission looks particularly odd in light of the prodigious body of work that seeks to reconcile judicial review by the unelected federal courts with democratic imperatives. Responding to Hall's charge, this essay aims, first, to put the conventional wisdom on firmer conceptual ground, and then to show how it might be upended. Even an efficacious, abuse-free system of judicial elections, I will argue, does not necessarily advance the cause of self-government -- at least, not unless one takes a highly controversial view of the judicial function and of democracy itself. The opponents of judicial elections need not cede the democratic high ground. Beyond any of the specific arguments that I make in the space I have here, my larger aim is to suggest how the "endless" debate over judicial selection (Geyh 2008) might be shifted onto more productive terrain.