Popular justice: State judicial elections and procedural due process

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 1, 1996, Pages 187-220

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EID: 0347198470     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (228)

1. See, e.g., Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 714-25 (1995) (describing the origin and development of judicial elections in the United States); Maura Anne Schoshinski, Note and Comment, Towards an Independent, Fair, and Competent Judiciary: An Argument for Improving Judicial Elections, 7 GEO. J. LEGAL ETHICS 839, 844-49 (1994).
2. See, e.g., Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 714-25 (1995) (describing the origin and development of judicial elections in the United States); Maura Anne Schoshinski, Note and Comment, Towards an Independent, Fair, and Competent Judiciary: An Argument for Improving Judicial Elections, 7 GEO. J. LEGAL ETHICS 839, 844-49 (1994).
3. Thirty-nine states require that at least some judges stand for some form of election. See SARA MATHIAS, ELECTING JUSTICE: A HANDBOOK OF JUDICIAL ELECTION REFORMS 142-45 (1990).
4. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
5. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
6. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
7. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
8. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
9. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
10. Innumerable legal and political science journal articles discuss judicial elections. See, e.g., Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995); Croley, supra note 1; Kenyon N. Griffin & Michael J. Horan, Patterns of Voting Behavior in Judicial Retention Elections for Supreme Court Justices in Wyoming, 67 JUDICATURE 68 (1983); L. Douglas Kiel, Carole Funk, & Anthony Champagne, Two-Party Competition and Trial Court Elections in Texas, 77 JUDICATURE 290 (1994); Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 331-38 (1988); Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2 J. LAW & POLITICS 57 (1985) [hereinafter Elective Judges]; USC Symposium on Judicial Election, Selection, and Accountability, 61 S. CAL. L. REV. 1555 (1988); Mark Andrew Grannis, Note, Safe Guarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers, 86 MICH. L. REV. 382 (1987).
11. Studies have shown that although a subset of the voting public is quite informed about and aware of judicial elections, most voters are not. See Nicholas P. Lovrich, John C. Pierce, & Charles H. Sheldon, Citizen Knowledge and Voting in Judicial Elections, 73 JUDICATURE 28 (1989); Nicholas P. Lovrich, Jr. & Charles H. Sheldon, Voters in Judicial Elections: An Attentive Public or an Uninformed Electorate?, 9 JUST. SYS. J. 23 (1984); Charles H. Sheldon & Nicholas P. Lovrich, Jr., Knowledge and Judicial Voting: The Oregon and Washington Experience, 67 JUDICATURE 234 (1983).
12. Studies have shown that although a subset of the voting public is quite informed about and aware of judicial elections, most voters are not. See Nicholas P. Lovrich, John C. Pierce, & Charles H. Sheldon, Citizen Knowledge and Voting in Judicial Elections, 73 JUDICATURE 28 (1989); Nicholas P. Lovrich, Jr. & Charles H. Sheldon, Voters in Judicial Elections: An Attentive Public or an Uninformed Electorate?, 9 JUST. SYS. J. 23 (1984); Charles H. Sheldon & Nicholas P. Lovrich, Jr., Knowledge and Judicial Voting: The Oregon and Washington Experience, 67 JUDICATURE 234 (1983).
13. Studies have shown that although a subset of the voting public is quite informed about and aware of judicial elections, most voters are not. See Nicholas P. Lovrich, John C. Pierce, & Charles H. Sheldon, Citizen Knowledge and Voting in Judicial Elections, 73 JUDICATURE 28 (1989); Nicholas P. Lovrich, Jr. & Charles H. Sheldon, Voters in Judicial Elections: An Attentive Public or an Uninformed Electorate?, 9 JUST. SYS. J. 23 (1984); Charles H. Sheldon & Nicholas P. Lovrich, Jr., Knowledge and Judicial Voting: The Oregon and Washington Experience, 67 JUDICATURE 234 (1983).
14. Over 90% of all court business in the United States occurs in state trial courts. See William K. Hall & Larry T. Aspin, What Twenty Years of Judicial Elections Have Told Us, 70 JUDICATURE 340, 340 (1987). About 98% of court business takes place in state courts of all levels. See Schotland, Elective Judges, supra note 3, at 77.
15. Over 90% of all court business in the United States occurs in state trial courts. See William K. Hall & Larry T. Aspin, What Twenty Years of Judicial Elections Have Told Us, 70 JUDICATURE 340, 340 (1987). About 98% of court business takes place in state courts of all levels. See Schotland, Elective Judges, supra note 3, at 77.
16. State courts have concurrent jurisdiction over federal issues and must adjudicate federal issues raised in state court proceedings. See U.S. CONST. art. VI, cl. 2 (stating that the Constitution and all laws and treaties arising under it are the supreme law of the land and that state judges are bound to apply federal law); Testa v. Katt, 330 U.S. 386 (1947) (holding that state courts were constitutionally obliged to entertain suits under the Emergency Price Control Act).
17. See, e.g., Tafflin v. Levitt, 493 U.S. 455 (1990) (holding that concurrent federal and state court jurisdiction is presumed unless Congress explicitly or implicitly states otherwise).
18. See, e.g., Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908) (holding that a federal defense is insufficient to invoke original federal jurisdiction).
19. See, e.g., Merrell Dow Pharmaceutical, Inc. v. Thompson, 478 U.S. 804, 827 n.6 (1986) (Brennan, J., dissenting) (commenting on the tiny number of state court judgments reviewed by the Supreme Court and the resulting impossibility of the Court adequately policing state court enforcement of federal law).
20. 28 U.S.C. § 2241(c) (1988); see also Jones v. Cunningham, 371 U.S. 236 (1963) (acknowledging that custody is generally a requirement to file a habeas petition but holding that there are exceptions).
21. See, e.g., 28 U.S.C. § 2254(d) (1988) (requiring federal courts exercising habeas corpus jurisdiction to defer to reasonable state court findings of fact); Teague v. Lane, 489 U.S. 288 (1989) (holding that "new law" could not be applied retroactively on federal habeas corpus, such that only claims based on clearly existing prior law could be raised); Wainwright v. Sykes, 433 U.S. 72 (1977) (holding that failure to comply with state procedural rules for raising constitutional objections barred habeas review of the alleged constitutional violation); Stone v. Powell, 428 U.S. 465 (1976) (holding that claims of Fourth Amendment violations could not be relitigated on habeas review unless state court system failed to provide "full and fair opportunity" to raise the issue); see also Bright & Keenan, supra note 3, at 768-69 n.44 (providing an exhaustive list of the limitations that the Supreme Court has placed on federal habeas corpus jurisdiction).
22. See infra notes 15-33 and accompanying text.
23. By "judicial elections," this Note refers to situations in which sitting judges must face reelection. See infra notes 155-161 and accompanying text.
24. Several articles have argued that state judicial elections violate due process in some way. See Martin H. Redish & Lawrence C. Marshall, Adjudicators Independence and the Values of Procedural Due Process, 95 YALE L.J. 455, 496-98 (1986) (arguing that it violates due process for an elected judge to preside over a trial in which the state is a party); Leonard E. Bennett, Note, The Impossibility of Impartiality: Interest in Judicial Reelection as a Denial of Due Process for a Criminal Defendant, 4 GEO. MASON U. CIV. RTS. L.J. 275 (1994) (arguing that it violates due process for a judge to preside over a "sensational" trial when she is up for reelection); Grannis, supra note 3 (arguing that judicial campaign finance may violate due process). This Note differs from these articles in that it argues that judicial elections inherently violate due process, while these articles argue that such elections may violate due process given certain circumstances or certain parties.
25. Several articles have argued that state judicial elections violate due process in some way. See Martin H. Redish & Lawrence C. Marshall, Adjudicators Independence and the Values of Procedural Due Process, 95 YALE L.J. 455, 496-98 (1986) (arguing that it violates due process for an elected judge to preside over a trial in which the state is a party); Leonard E. Bennett, Note, The Impossibility of Impartiality: Interest in Judicial Reelection as a Denial of Due Process for a Criminal Defendant, 4 GEO. MASON U. CIV. RTS. L.J. 275 (1994) (arguing that it violates due process for a judge to preside over a "sensational" trial when she is up for reelection); Grannis, supra note 3 (arguing that judicial campaign finance may violate due process). This Note differs from these articles in that it argues that judicial elections inherently violate due process, while these articles argue that such elections may violate due process given certain circumstances or certain parties.
26. See, e.g., U.S. CONST. amend. IV (no warrant without determination of probable cause); U.S. CONST. amend. V (privilege against self-incrimination, right to indictment by grand jury, and prohibition of double jeopardy); U.S. CONST. amend. VI (right to speedy and public trial, right to trial by jury, right to confront adverse witnesses, right to compulsory process, right to counsel, and right to present defense); U.S. CONST. amend VII (right to jury trial in federal civil cases).
27. See infra notes 19-25, 28-33 and accompanying text (describing Supreme Court jurisprudence). Since much has been written in this area, this Part will not repeat what others have adequately addressed. See, e.g., Laura E. Little, Loyalty, Gratitude, and the Federal Judiciary, 44 AM. U. L. REV. 699, 711-15 (1995); Redish & Marshall, supra note 14; Bennett, supra note 14, at 282-85; Grannis, supra note 3, at 387-96. Instead, this Part will provide an overview of the issues that are relevant to the questions that this Note raises.
28. An adjudicator free from unacceptable bias is perhaps the most important component of procedural due process. Other procedural components of due process are meaningless if the decisionmaker is biased. See Little, supra note 16, at 715; Redish & Marshall, supra note 14, at 475-81.
29. See, e.g., Little, supra note 16, at 750; Martha Minow, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors, 33 WM. & MARY L. REV. 1201 (1992).
30. 273 U.S. 510 (1927).
31. Id. at 520.
32. Id. at 522-23.
33. Id. at 532.
34. 409 U.S. 57 (1972).
35. Id. at 60.
36. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824-25 (1986) (holding that a judge could not decide a legal issue that would stand as precedent in another case in which the same judge was a litigant); Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973) (holding that a state board of optometry, composed solely of independent practitioners, could not adjudicate claims that optometrists who worked for large companies were engaging in unprofessional conduct); Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (holding that a judge could not adjudicate defendant's criminal contempt charge resulting from argument with the same judge); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (stating that a welfare official reviewing termination of benefits must not have been involved in the initial decision to terminate). In addition to actual bias and unacceptable risk of bias, Supreme Court precedent in this area implies that appearance of bias violates due process. See, e.g., Taylor v. Hayes, 418 U.S. 488, 501 (1974) ("[T]he inquiry must be not only whether there was actual bias . . . but also whether there was 'such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.'") (citation omitted).
37. See, e.g., Kaczmarczyk v. Immigration and Naturalization Service, 933 F.2d 588, 594-95 (7th Cir. 1991) (stating that it would violate due process for the Immigration and Naturalization Service automatically to deny asylum to applicants from a specific country without individualized adjudications).
38. For example, the Fifth Amendment guarantees the rights of persons, and the Sixth Amendment applies to "the accused." See U.S. CONST. amend. V; U.S. CONST. amend. VI.
39. 414 U.S. 632 (1974).
40. Id. at 639-48.
41. Id.
42. 114 S. Ct. 492 (1993).
43. Id.
44. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (holding that an unwed father could not be presumed to be an unfit parent and was entitled to an individualized hearing for a determination of fitness); Bell v. Burson, 402 U.S. 535 (1971) (holding that a state could not bar a person who had been involved in an accident and who did not have insurance from the state's highways without an individualized determination); Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that due process required a hearing before welfare benefits could be terminated).
45. See supra note 2.
46. Eight states (Alabama, Arkansas, Illinois, Mississippi, North Carolina, Pennsylvania, Texas, and West Virginia) initially elect all of their judges in partisan elections. Six of those states (Alabama, Arkansas, Mississippi, North Carolina, Texas, and West Virginia) force all of their judges to submit to partisan reelection. See MATHIAS, supra note 2, at 142-45.
47. Twelve states (Georgia, Idaho, Kentucky, Louisiana, Michigan, Minnesota, Montana, Nevada, North Dakota, Oregon, Washington, and Wisconsin) require all of their judges to submit to initial non-partisan elections. Twelve states (Georgia, Idaho, Kentucky, Louisiana, Michigan, Minnesota, Nevada, North Dakota, Ohio, Oregon, Washington, and Wisconsin) require all of their judges to submit to non-partisan reelection. See id.
48. Merit selection usually entails initial appointment with subsequent yes-no retention elections. Alaska, Colorado, Iowa, Nebraska, Utah, and Wyoming use this method for all judges. See id.
49. For example, in California, Florida, Maryland, Oklahoma, and South Dakota, appellate judges stand for yes-no retention elections, whereas trial court judges stand for reelection in nonpartisan races. In Indiana, Kansas, and Missouri, judges who were initially appointed stand for retention elections, whereas all other judges are reelected in partisan races. In Pennsylvania and Illinois, judges are initially elected in partisan elections and are then subject to yes-no retention elections. See id.
50. One could object that this Part does not provide an empirical analysis of judicial elections and their relationship to the decisionmaking process, relying instead on more anecdotal evidence. Although this is a valid criticism in that a sophisticated empirical analysis could provide stronger evidence of the problems created by judicial elections, such an empirical study would be impractical. It would require enormous resources, including the categorization of tens of thousands of elections and state court decisions. Many of these elections are not even documented, and only a small percentage of state court decisions are set out in written opinions. Given that an accurate empirical study would be difficult to achieve, a more anecdotal study is appropriate. As with any anecdotal study, it is important to recognize its limits - as this Note does. It does not argue that actual bias or lack of an individualized adjudication occurs in every case. Rather, it argues that the risk of such an occurrence in any given case is substantial enough to violate due process and that a prophylactic rule is therefore necessary to reduce that risk to an acceptable level.
51. See Schotland, Elective Judges, supra note 3, at 76.
52. See Schotland, Elective Judges, supra note 3.
53. See, e.g., id.
54. See, e.g., David S. Broder, Region's Political Choices Point Direction for Nation, WASH. POST, May 23, 1986, at Al; Thomas B. Edsall, In South, Hope - and Unease - Over Clinton, WASH. POST, Feb. 11, 1992, at A8.
55. See, e.g., David S. Broder, Region's Political Choices Point Direction for Nation, WASH. POST, May 23, 1986, at Al; Thomas B. Edsall, In South, Hope - and Unease - Over Clinton, WASH. POST, Feb. 11, 1992, at A8.
56. See supra notes 35-38 and accompanying text; see also MATHIAS, supra note 2, at 142-45.
57. See infra text accompanying notes 46-56.
58. See id.
59. See Anthony Champagne, Judicial Reform in Texas, 72 JUDICATURE 146, 148 (1988).
60. See id. at 148-51; see also Sheila Kaplan, Justice for Sale, COMMON CAUSE MAG., May/June 1987, at 32 (describing race in which personal injury plaintiffs' attorneys financed one candidate while a physicians' political action committee and insurance attorneys financed the other candidate).
61. See Champagne, supra note 47, at 148-50.
62. Mark Hansen, The High Cost of Judging, A.B.A. J., Sept. 1991, at 44.
63. See id.; see also Schotland, Elective Judges, supra note 3, at 61.
64. See id.; see also Schotland, Elective Judges, supra note 3, at 61.
65. See, e.g., Gregory Gelfand, 'Pun's Oil Sues Toxico': A Comedy of Errors in (at Least) Four Acts, 11 DEL. J. CORP. L. 345 (1986) (describing the progression of the lawsuit).
66. See Champagne, supra note 47, at 149.
67. See Virginia Ellis, Campaign Donations to State's Chief Justice Surpass $600,000, HOUS. POST, July 16, 1988, at 7A.
68. See Champagne, supra note 47, at 149.
69. Id. (quoting Richard Fish, Flashy Lawyer Dabbles in Politics for Fun, DALLAS MORNING NEWS, May 9, 1982, at 1AA, 4AA).
70. See Hansen, supra note 50, at 44, 46.
71. See Joseph R. Daughen, The Castille Touch: Castille Party Draws Fire, PHILA. DAILY NEWS, Nov. 30, 1993, at 5.
72. See id. One attorney described the situation: I gave to him before because I wanted to . . . . But I don't think I have a choice now. Am I going to be the one who doesn't contribute? No way. I'll bet they can sell as many tickets as they want to lawyers. He's going to be on the Supreme Court a long time. Id.
73. See Daniel R. Biddle, Above the Law, PHILA. INQUIRER, May 15, 1983, at A1; Daniel R. Biddle, Fear Contributes to Lawyer Donations, PHILA. INQUIRER, May 15, 1983, at A23; Daniel R. Biddle, The Larsen Files: Under Oath, Many Stories Conflict, PHILA. INQUIRER, May 11, 1983, at A1. The series was later the subject of a libel suit. See Alex S. Jones, Libel Suits by Pennsylvania Justices Raise 'Scary' Questions for Inquirer, N.Y. TIMES, Oct. 26, 1984, at A16.
74. See Daniel R. Biddle, Above the Law, PHILA. INQUIRER, May 15, 1983, at A1; Daniel R. Biddle, Fear Contributes to Lawyer Donations, PHILA. INQUIRER, May 15, 1983, at A23; Daniel R. Biddle, The Larsen Files: Under Oath, Many Stories Conflict, PHILA. INQUIRER, May 11, 1983, at A1. The series was later the subject of a libel suit. See Alex S. Jones, Libel Suits by Pennsylvania Justices Raise 'Scary' Questions for Inquirer, N.Y. TIMES, Oct. 26, 1984, at A16.
75. See Daniel R. Biddle, Above the Law, PHILA. INQUIRER, May 15, 1983, at A1; Daniel R. Biddle, Fear Contributes to Lawyer Donations, PHILA. INQUIRER, May 15, 1983, at A23; Daniel R. Biddle, The Larsen Files: Under Oath, Many Stories Conflict, PHILA. INQUIRER, May 11, 1983, at A1. The series was later the subject of a libel suit. See Alex S. Jones, Libel Suits by Pennsylvania Justices Raise 'Scary' Questions for Inquirer, N.Y. TIMES, Oct. 26, 1984, at A16.
76. See Daniel R. Biddle, Above the Law, PHILA. INQUIRER, May 15, 1983, at A1; Daniel R. Biddle, Fear Contributes to Lawyer Donations, PHILA. INQUIRER, May 15, 1983, at A23; Daniel R. Biddle, The Larsen Files: Under Oath, Many Stories Conflict, PHILA. INQUIRER, May 11, 1983, at A1. The series was later the subject of a libel suit. See Alex S. Jones, Libel Suits by Pennsylvania Justices Raise 'Scary' Questions for Inquirer, N.Y. TIMES, Oct. 26, 1984, at A16.
77. See Schotland, Elective Judges, supra note 3, at 61-63.
78. See Hansen, supra note 50, at 44-45.
79. See id. The 1986 California election reveals the potentially deceptive nature of campaign finance. Much of the campaign against the California justices was publicly supported by "victims' rights" groups which were unhappy with the court's pro-defendant record. However, the campaign against the incumbents was largely financed by business interests that were unhappy about the court's pro-consumer, pro-tenant, and pro-employee decisions. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985, 1986 (1988); John T. Wold, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 350 (1987). Agricultural interests in particular were upset about Chief Justice Bird's role as Secretary of Agriculture under Governor Jerry Brown, when she had taken aggressive steps to protect migrant farm workers. See John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 JUDICATURE 81, 83 (1986); Robert S. Thompson, Judicial Retention Elections and Judicial Method: A Retrospective on the California Retention Election of 1986, 61 S. CAL. L. REV. 2007, 2025 (1988).
80. See id. The 1986 California election reveals the potentially deceptive nature of campaign finance. Much of the campaign against the California justices was publicly supported by "victims' rights" groups which were unhappy with the court's pro-defendant record. However, the campaign against the incumbents was largely financed by business interests that were unhappy about the court's pro-consumer, pro-tenant, and pro-employee decisions. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985, 1986 (1988); John T. Wold, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 350 (1987). Agricultural interests in particular were upset about Chief Justice Bird's role as Secretary of Agriculture under Governor Jerry Brown, when she had taken aggressive steps to protect migrant farm workers. See John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 JUDICATURE 81, 83 (1986); Robert S. Thompson, Judicial Retention Elections and Judicial Method: A Retrospective on the California Retention Election of 1986, 61 S. CAL. L. REV. 2007, 2025 (1988).
81. See id. The 1986 California election reveals the potentially deceptive nature of campaign finance. Much of the campaign against the California justices was publicly supported by "victims' rights" groups which were unhappy with the court's pro-defendant record. However, the campaign against the incumbents was largely financed by business interests that were unhappy about the court's pro-consumer, pro-tenant, and pro-employee decisions. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985, 1986 (1988); John T. Wold, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 350 (1987). Agricultural interests in particular were upset about Chief Justice Bird's role as Secretary of Agriculture under Governor Jerry Brown, when she had taken aggressive steps to protect migrant farm workers. See John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 JUDICATURE 81, 83 (1986); Robert S. Thompson, Judicial Retention Elections and Judicial Method: A Retrospective on the California Retention Election of 1986, 61 S. CAL. L. REV. 2007, 2025 (1988).
82. See id. The 1986 California election reveals the potentially deceptive nature of campaign finance. Much of the campaign against the California justices was publicly supported by "victims' rights" groups which were unhappy with the court's pro-defendant record. However, the campaign against the incumbents was largely financed by business interests that were unhappy about the court's pro-consumer, pro-tenant, and pro-employee decisions. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985, 1986 (1988); John T. Wold, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 350 (1987). Agricultural interests in particular were upset about Chief Justice Bird's role as Secretary of Agriculture under Governor Jerry Brown, when she had taken aggressive steps to protect migrant farm workers. See John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 JUDICATURE 81, 83 (1986); Robert S. Thompson, Judicial Retention Elections and Judicial Method: A Retrospective on the California Retention Election of 1986, 61 S. CAL. L. REV. 2007, 2025 (1988).
83. See Hansen, supra note 50, at 44.
84. See Kaplan, supra note 48, at 31.
85. See, e.g., Marlene Arnold Nicholson & Norman Nicholson, Funding Judicial Campaigns in Illinois, 77 JUDICATURE 294 (1994) (finding that sitting judges and sure winners for judgeships throughout the system receive disproportionate contributions).
86. See, e.g., Helen Dewar, Idea of New Campaign Finance Law Gives Hill the Chills, WASH. POST, Feb. 17, 1993, at A7 (describing the reluctance of members of Congress to pass campaign finance reform measure because of the importance of money in elections); Jack Valenti, Campaign Finance Disease, WASH. POST, Mar. 25, 1995, at A19 (criticizing the importance of money in politics).
87. See, e.g., Helen Dewar, Idea of New Campaign Finance Law Gives Hill the Chills, WASH. POST, Feb. 17, 1993, at A7 (describing the reluctance of members of Congress to pass campaign finance reform measure because of the importance of money in elections); Jack Valenti, Campaign Finance Disease, WASH. POST, Mar. 25, 1995, at A19 (criticizing the importance of money in politics).
88. See supra note 35.
89. In New York City and Chicago, political parties exact money from judicial candidates in this manner. See Schotland, Elective Judges, supra note 3, at 64-65. In California, judges must contribute to the party in order to receive favorable slating. See id. at 70-72. In Philadelphia, judges often reward political cronies with appointments as defense attorneys in capital cases. See Fredric N. Tulsky, Big-time Trials; Small Time Defenses, PHILA. INQUIRER, Sept. 14, 1992, at A1 ("Philadelphia's poor defendants often find themselves being represented by ward leaders, ward committeemen, failed politicians, the sons of judges and party leaders, and contributors to the judges' election campaigns.").
90. In New York City and Chicago, political parties exact money from judicial candidates in this manner. See Schotland, Elective Judges, supra note 3, at 64-65. In California, judges must contribute to the party in order to receive favorable slating. See id. at 70-72. In Philadelphia, judges often reward political cronies with appointments as defense attorneys in capital cases. See Fredric N. Tulsky, Big-time Trials; Small Time Defenses, PHILA. INQUIRER, Sept. 14, 1992, at A1 ("Philadelphia's poor defendants often find themselves being represented by ward leaders, ward committeemen, failed politicians, the sons of judges and party leaders, and contributors to the judges' election campaigns.").
91. Rick A. Swanson & Albert P. Melone, The Partisan Factor and Judicial Behavior in the Illinois Supreme Court, 19 S. ILL. U. L. J. 303 (1995).
92. Id. at 329.
93. Id.
94. See After California, What's Next for Judicial Elections?, 70 JUDICATURE 356, 362 (1987).
95. See Roy A. Schotland, 1986 - A Historic Year for Judicial Elections, 70 JUDICATURE 246 (1987).
96. See MODEL CODE OF JUDICIAL CONDUCT Canons 3A(6) & 7B(1)(c); see also PATRICK M. MCFADDEN, ELECTING JUSTICE: THE LAW AND ETHICS OF JUDICIAL ELECTION CAMPAIGNS 81-92 (1990).
97. See MCFADDEN, supra note 75, at 15.
98. See infra note 97 and accompanying text; see also Bright & Keenan, supra note 3, at 763-65 (describing instances of judges who lost reelection because of small number of death sentence reversals).
99. Transcript of commercial, quoted in Schotland, Elective Judges, supra note 3, at 66.
100. Transcript of commercial, quoted in David Lauter, Some Bench Battles Are Bitter, Costly, NAT'L L.J., Nov. 12, 1984, at 6.
101. See David Lauter, Celebrezze Beaten in Ohio, Most Incumbent Judges Win, NAT'L L.J., Nov. 26, 1984, at 9.
102. For a superb discussion of the effects of judicial elections on the administration of capital punishment, see Bright & Keenan, supra note 3. Bright and Keenan note that 32 states employ both judicial elections and capital punishment. See id. at 779.
103. Gregg v. Georgia, 428 U.S. 153 (1976).
104. See supra note 11; see also Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure, 21 FORDHAM URB. L.J. 239, 244-46 (1994) [hereinafter Politics and the Death Penalty].
105. See, e.g., Bright & Keenan, supra note 3, at 769-76 (discussing the American obsession with crime and commenting that fear of crime has replaced fear of communism as major political motivator); Joan Biskupic, Judges Attack the Death "Machine", WASH. POST, Apr. 16, 1995 at A16 (stating that 75% of Americans support the death penalty); cf. Politics and the Death Penalty, supra note 83, at 246-49 (discussing pressures on politicians to carry out death penalties at all costs).
106. See, e.g., Bright & Keenan, supra note 3, at 769-76 (discussing the American obsession with crime and commenting that fear of crime has replaced fear of communism as major political motivator); Joan Biskupic, Judges Attack the Death "Machine", WASH. POST, Apr. 16, 1995 at A16 (stating that 75% of Americans support the death penalty); cf. Politics and the Death Penalty, supra note 83, at 246-49 (discussing pressures on politicians to carry out death penalties at all costs).
107. California's 1986 retention election has been heavily documented, See, e.g., Culver & Wold, supra note 63; Joseph R. Grodin, Judicial Elections: The California Experience, 70 JUDICATURE 365 (1987); Thompson, supra note 63; Wold, supra note 63.
108. See Thompson, supra note 63, at 2033.
109. See id.
110. When, beginning in late 1985, Justice Mosk began to vote to affirm death sentences, Governor Deukmejian announced that he would vote "yes" on Justice Mosk. Justice Mosk was subsequently retained. See Wold, supra note 63, at 349.
111. Governor Deukmejian, for example, stated that he opposed Justice Reynoso because Reynoso had only voted to uphold one death sentence and that he (initially) opposed Justice Stanley Myosk because Mosk had only voted to uphold five death sentences. See Grodin, supra note 85, at 367.
112. See Chemerinsky, Evaluating Judicial Candidates, supra note 63, at 1986.
113. See After California, What's Next for Judicial Elections?, supra note 73, at 358.
114. See Politics and the Death Penalty, supra note 83, at 270-73. Chief Justice Exum described one of the campaigns: Some of the campaign debate got really grizzly. My opponents would bring up all the times I had dissented in cases involving the imposition of the death penalty, and I had to come back and demonstrate all the times I had concurred in cases sustaining the death penalty. So, it emerged into a battle of statistics. Id.
115. See id.
116. See id. at 287.
117. See id. at 281 & n.84. The campaign against Justice Robertson included an advertisement that urged voters to "vote against Robertson because he's opposed to the death penalty and he wants to let all these people go." Id.
118. See Bright & Keenan, supra note 3, at 786-87.
119. Paul Brace and Melinda Gann Hall, Neo-Institutionalism and Dissent in State Supreme Courts, 52 J. POL. 54 (1990); Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117 (1987); Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427 (1992). Hall concluded that reelection concerns "influence liberal justices to join conservative majorities in death penalty cases in Texas, North Carolina, Louisiana, and Kentucky." Hall, Electoral Politics and Strategic Voting in State Supreme Courts, at 442.
120. Paul Brace and Melinda Gann Hall, Neo-Institutionalism and Dissent in State Supreme Courts, 52 J. POL. 54 (1990); Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117 (1987); Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427 (1992). Hall concluded that reelection concerns "influence liberal justices to join conservative majorities in death penalty cases in Texas, North Carolina, Louisiana, and Kentucky." Hall, Electoral Politics and Strategic Voting in State Supreme Courts, at 442.
121. Paul Brace and Melinda Gann Hall, Neo-Institutionalism and Dissent in State Supreme Courts, 52 J. POL. 54 (1990); Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117 (1987); Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427 (1992). Hall concluded that reelection concerns "influence liberal justices to join conservative majorities in death penalty cases in Texas, North Carolina, Louisiana, and Kentucky." Hall, Electoral Politics and Strategic Voting in State Supreme Courts, at 442.
122. Paul Brace and Melinda Gann Hall, Neo-Institutionalism and Dissent in State Supreme Courts, 52 J. POL. 54 (1990); Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117 (1987); Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427 (1992). Hall concluded that reelection concerns "influence liberal justices to join conservative majorities in death penalty cases in Texas, North Carolina, Louisiana, and Kentucky." Hall, Electoral Politics and Strategic Voting in State Supreme Courts, at 442.
123. See Bright & Keenan, supra note 3, at 787. Bright and Keenan describe several situations in which judges facing elections have sought to preside over criminal, and especially capital, cases: In Louisville, Kentucky, a judge sought to have a colleague who was four days away from an election preside over the arraignment of an African-American defendant accused of the highly publicized murder of a white deputy sheriff. Local television stations set up numerous cameras in the courtroom. The judge on whose docket the case appeared summoned defense counsel to chambers and explained that Judge Jim Shake would preside at the arraignment because "Jim's on the ballot Tuesday." Id. (citations omitted).
124. The Supreme Court has held that the Constitution does not require judges to grant even minimal deference to jury-imposed life sentences. See Harris v. Alabama, 115 S. Ct. 1031, 1034-36 (1995).
125. See Bright & Keenan, supra note 3, at 766, 793-94. In Alabama, for example, approximately one-fourth of death row inmates were sentenced to death via judicial override. See Politics and the Death Penalty, supra note 83, at 255-56; Marcia Coyle, Fred Strasser, & Marianne Lavelle, Fatal Defense: Trial and Error in the Nation's Death Belt, NAT'L L.J., June 11, 1990, at 35.
126. See Bright & Keenan, supra note 3, at 766, 793-94. In Alabama, for example, approximately one-fourth of death row inmates were sentenced to death via judicial override. See Politics and the Death Penalty, supra note 83, at 255-56; Marcia Coyle, Fred Strasser, & Marianne Lavelle, Fatal Defense: Trial and Error in the Nation's Death Belt, NAT'L L.J., June 11, 1990, at 35.
127. Politics and the Death Penalty, supra note 83, at 256; see also Coleman McCarthy, Insane and on Death Row, WASH. POST, May 6, 1995, at A15. Justice Stevens has argued that judicial overrides of life sentences are unconstitutional because of the political pressure inherent in the process. See Harris, 115 S. Ct. at 1039 (Stevens, J., dissenting) ("The 'higher authority' to whom present-day capital judges may be 'too responsive' is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty."); Steven Nichol, State Judges Faulted on Death Penalty: Sentence Is Politically Popular, Justice Says, SUN SENTINEL, Dec. 16, 1994, at 1B.
128. Politics and the Death Penalty, supra note 83, at 256; see also Coleman McCarthy, Insane and on Death Row, WASH. POST, May 6, 1995, at A15. Justice Stevens has argued that judicial overrides of life sentences are unconstitutional because of the political pressure inherent in the process. See Harris, 115 S. Ct. at 1039 (Stevens, J., dissenting) ("The 'higher authority' to whom present-day capital judges may be 'too responsive' is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty."); Steven Nichol, State Judges Faulted on Death Penalty: Sentence Is Politically Popular, Justice Says, SUN SENTINEL, Dec. 16, 1994, at 1B.
129. Politics and the Death Penalty, supra note 83, at 256; see also Coleman McCarthy, Insane and on Death Row, WASH. POST, May 6, 1995, at A15. Justice Stevens has argued that judicial overrides of life sentences are unconstitutional because of the political pressure inherent in the process. See Harris, 115 S. Ct. at 1039 (Stevens, J., dissenting) ("The 'higher authority' to whom present-day capital judges may be 'too responsive' is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty."); Steven Nichol, State Judges Faulted on Death Penalty: Sentence Is Politically Popular, Justice Says, SUN SENTINEL, Dec. 16, 1994, at 1B.
130. See Bright & Keenan, supra note 3, at 769-76.
131. See Schotland, Elective Judges, supra note 3, at 79-80.
132. Id. at 80.
133. Id. Justice Linde of the Supreme Court of Oregon has summarized the phenomenon as follows: Every judge's campaign slogan, in advertisements and on billboards, is some variation of "tough on crime." The liberal candidate is the one who advertises: "Tough but fair." Television commercials have featured judges in their robes slamming shut a prison cell door . . . . Most judges may see themselves as umpires between the state and the citizen, but many citizens regard judges as part of law enforcement, and plenty of candidates will offer themselves for that role. A conscientious judge who imposes less than the maximum possible sentence in cases evoking public outrage invites a bidding war with future opponents. Hans A. Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 2000-01 (1988).
134. See Brown v. Doe, 2 F.3d 1236, 1248-49 (2d Cir. 1993) (rejecting claim that judge could not have impartially presided over trial); see also Sheppard v. Maxwell, 346 F.2d 707, 729-30 (6th Cir. 1965) (holding that the fact that the judge was campaigning for reelection during the trial and appeared on the same ballot as a member of the prosecution staff was not sufficient to prove judicial bias), rev'd on other grounds, 384 U.S. 333 (1966).
135. MCFADDEN, supra note 75, at 80.
136. See supra text accompanying notes 40-67.
137. See supra text accompanying notes 68-74.
138. See id.
139. See Little, supra note 16, at 729-38.
140. See U.S. CONST. art. III, § 1, cl. 2.
141. There are, of course, ways in which the political branches influence Article III judges. Congress may impeach and remove federal judges from office; Congress and the president may "pack" the federal judiciary by creating new judgeships; Congress and/or the states may amend the Constitution; and Congress and the president have substantial control over the jurisdiction of the federal courts. Some have argued that the only truly effective political control over the federal judiciary is congressional power over federal court jurisdiction. See MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY 125-35 (1982); Charles Black, The Presidency and Congress, 32 WASH. & LEE L. REV. 841, 846 (1975). But see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957) (arguing that presidential appointment and Senate confirmation make the Supreme Court a part of the political process and ensure that it does not stray far from prevailing political majorities).
142. There are, of course, ways in which the political branches influence Article III judges. Congress may impeach and remove federal judges from office; Congress and the president may "pack" the federal judiciary by creating new judgeships; Congress and/or the states may amend the Constitution; and Congress and the president have substantial control over the jurisdiction of the federal courts. Some have argued that the only truly effective political control over the federal judiciary is congressional power over federal court jurisdiction. See MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY 125-35 (1982); Charles Black, The Presidency and Congress, 32 WASH. & LEE L. REV. 841, 846 (1975). But see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957) (arguing that presidential appointment and Senate confirmation make the Supreme Court a part of the political process and ensure that it does not stray far from prevailing political majorities).
143. There are, of course, ways in which the political branches influence Article III judges. Congress may impeach and remove federal judges from office; Congress and the president may "pack" the federal judiciary by creating new judgeships; Congress and/or the states may amend the Constitution; and Congress and the president have substantial control over the jurisdiction of the federal courts. Some have argued that the only truly effective political control over the federal judiciary is congressional power over federal court jurisdiction. See MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY 125-35 (1982); Charles Black, The Presidency and Congress, 32 WASH. & LEE L. REV. 841, 846 (1975). But see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957) (arguing that presidential appointment and Senate confirmation make the Supreme Court a part of the political process and ensure that it does not stray far from prevailing political majorities).
144. This Note does not argue that judges who are independent are thereby able to "discover" preexisting, objectively ascertainable law, whereas elected judges, because of the distraction and influence of elections and politics, are unable to "discover" the law. The point of requiring independent judges is not to afford litigants the right to have an adjudicator who is able to divine the law, but rather to help to assure the due process right to an individualized and unbiased adjudication. An individualized and unbiased adjudication does not guarantee any particular legal result. Rather, it ensures that the adjudication will be based on the specific merits of the case.
145. See supra note 26 and accompanying text.
146. Compare a judge's electoral decision to impose a harsh sentence, including a death sentence, to a similar decision based not on electoral concerns but rather on the fact that a large, angry mob is awaiting the verdict outside the courthouse. Although one might object to any comparison between voters and a mob, when a judge decides the fate of a human being based not on the facts of the case and the relevant law but rather on the perceptions of the uninformed public, the difference between electoral pressure and mob pressure is only a matter of degree. An example of the convergence of mob domination of a trial and electoral domination is the case of the "Scottsboro Boys," widely believed to have been a mockery of justice. In that case, a mob camped outside the courthouse during the first trial. Subsequently, the trial judge, Edwin Horton, granted the defendants a new trial. He was then voted out of office, despite having been unopposed in the prior election. See Bright & Keenan, supra note 3, at 765 n.32.
147. See supra note 85.
148. As of May, 1986, the Bird Court had affirmed only three of the 56 death sentences that had come before the court. See Culver & Wold, supra note 63, at 86.
149. See supra note 63.
150. See id. In 1978, about a year after Bird was appointed to the court, California agribusiness vigorously opposed her retention. She won by a very narrow margin. See Thompson, supra note 63, at 2025.
151. The disingenuousness of the anti-Bird campaign in implying that reversals of death sentences resulted in acquittal of the defendant was a prime example of the tactics available to opponents of judges. See supra text accompanying note 91. Attacks on judges for overturning even a small number of death sentences is another example of the ability of pressure groups to influence voters with exaggerated accusations. See supra text accompanying notes 92-97.
152. The 1986 California Supreme Court retention election is not the only example of manipulation of underinformed voters. Right before the 1986 retention election, a conservative member of the Los Angeles Board of Supervisors targeted five members of the California Court of Appeal. He sent out mailers stating that a "panel of lawyers" had decided that the records of the targeted justices were not good enough to merit retention. He never indicated who the lawyers were or what criteria they used to evaluate the justices. All five of the justices were retained, but they received approximately fifteen fewer percentage points than the justices who had not been targeted. Regardless of the accuracy of the allegations, by simply sending out a mass mailing with completely unsubstantiated accusations, an individual significantly affected the vote totals of five incumbent justices. See After California, What's Next for Judicial Elections?, supra note 73, at 357.
153. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (arguing that judicial review serves majoritarianism by ensuring that majority preferences govern over the long term and by protecting against expediency); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (arguing that judicial review ensures that the democratic process is functioning properly and is not being distorted by the powerful few); Croley, supra note 1, at 748-78 (canvassing the academic literature).
154. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (arguing that judicial review serves majoritarianism by ensuring that majority preferences govern over the long term and by protecting against expediency); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (arguing that judicial review ensures that the democratic process is functioning properly and is not being distorted by the powerful few); Croley, supra note 1, at 748-78 (canvassing the academic literature).
155. See Croley, supra note 1, at 748-78.
156. See, e.g., ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) (arguing that because democracy and judicial review cannot be reconciled, the judiciary should generally defer to democratic institutions); ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION (1987) (arguing that judges
157. See, e.g., ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) (arguing that because democracy and judicial review cannot be reconciled, the judiciary should generally defer to democratic institutions); ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION (1987) (arguing that judges should exercise great discretion in checking majoritarian preferences); Louis M. Seidman, Ambivalence and Accountability, 61 S. CAL. L. REV. 1571 (1988) (arguing that American ambivalence about the tension between democracy and judicial independence is inevitable).
158. See, e.g., ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) (arguing that because democracy and judicial review cannot be reconciled, the judiciary should generally defer to democratic institutions); ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION (1987) (arguing that judges should exercise great discretion in checking majoritarian preferences); Louis M. Seidman, Ambivalence and Accountability, 61 S. CAL. L. REV. 1571 (1988) (arguing that American ambivalence about the tension between democracy and judicial independence is inevitable).
159. See BICKEL, supra note 123; ELY, supra note 123.
160. See Croley, supra note 1 (arguing that in addition to examining the "difficulty" posed by the countermajoritarian nature of judicial review, commentators should also examine the "difficulty" posed by the majoritarian nature of democracy); Larry G. Simon, The Supreme Court's Independence: Accountability, Majoritarianism, and Justification, Comments on Seidman, 61 S. CAL. L. REV. 1607 (1988) (questioning the assumption that majoritarianism is the baseline against which other values must be measured).
161. Croley describes such a lack of countermajoritarian limits on democratic institutions as follows: [If all three branches of government are democratically selected], then no branch safeguards constitotionalism. Three elective branches, each responding to its own set of electoral pressures in ways that sometimes threaten the electorally impotent, furthers democracy but without securing constitutionalism. State judiciaries may function differently in state constitutional democracies as compared to the federal constitutional democracy, but seemingly not in any way that preserves commitments to constitutionalism. Croley, supra note 1, at 780.
162. Of course, even a relatively unaccountable judiciary, such as the federal judiciary, is accountable to a degree. See supra note 113.
163. Professor Richard Parker has written about the importance of participation by "ordinary people" in a healthy democracy. See RICHARD D. PARKER, "HERE, THE PEOPLE RULE": A CONSTITUTIONAL POPULIST MANIFESTO (1994).
164. Although not all litigants will recognize the relationship between judicial elections and adjudication, some no doubt will. One commentator - a journalist who had recently been involved in litigation - describes the perception that judicial elections create for litigants: Most people almost never have to go to court. When we do, it is a big deal . . . . [W]e definitely want to believe that the judge assigned to our case is going to be fair and impartial. Unfortunately, in my recent case, my lawyer told me that the judge handling it had low bar poll ratings . . . . I wondered whether my lawyer contributed to this guy's election campaign. Did the opposing counsel make a contribution? How would I know that I hadn't already lost the case? . . . . I did win the case. Justice prevailed. But the moral of the story is that in addition to having an excellent judiciary, it is important to have one that is perceived as excellent. Joel Achenbach, Why Reporters Love Judicial Elections, 49 U. MIAMI L. REV. 155, 157-58 (1994).
165. See, e.g., Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 522-23 (1963); Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 624-27 (1981) (arguing that failure to respect the competency of state courts reduces their incentive to adjudicate well).
166. See, e.g., Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 522-23 (1963); Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 624-27 (1981) (arguing that failure to respect the competency of state courts reduces their incentive to adjudicate well).
167. See, e.g., Southern Christian Leadership Conference of Ala. v. Sessions, 56 F.3d 1281, 1298 (11th Cir. 1995) (en banc) (Edmondson, J., concurring) (stating that the basic structure of Alabama's judicial system should be determined by its citizens); cf. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (describing state judicial eligibility requirements as part of state's self-definition as a sovereign).
168. See, e.g., Bator, The State Courts and Federal Constitutional Litigation, supra note 132 (arguing that state and federal courts are equally capable of adjudicating constitutional rights); Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (arguing that parity between state and federal courts does not exist); Redish, Judicial Parity, Litigant Choice and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, supra note 3, at 329-38 (arguing that federal courts are institutionally superior to state courts in adjudicating constitutional questions); Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983) (arguing that state and federal courts are equally likely to favor vindication of constitutional rights).
169. See, e.g., Bator, The State Courts and Federal Constitutional Litigation, supra note 132 (arguing that state and federal courts are equally capable of adjudicating constitutional rights); Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (arguing that parity between state and federal courts does not exist); Redish, Judicial Parity, Litigant Choice and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, supra note 3, at 329-38 (arguing that federal courts are institutionally superior to state courts in adjudicating constitutional questions); Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983) (arguing that state and federal courts are equally likely to favor vindication of constitutional rights).
170. See, e.g., Bator, The State Courts and Federal Constitutional Litigation, supra note 132 (arguing that state and federal courts are equally capable of adjudicating constitutional rights); Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (arguing that parity between state and federal courts does not exist); Redish, Judicial Parity, Litigant Choice and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, supra note 3, at 329-38 (arguing that federal courts are institutionally superior to state courts in adjudicating constitutional questions); Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983) (arguing that state and federal courts are equally likely to favor vindication of constitutional rights).
171. See, e.g., Bator, The State Courts and Federal Constitutional Litigation, supra note 132 (arguing that state and federal courts are equally capable of adjudicating constitutional rights); Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (arguing that parity between state and federal courts does not exist); Redish, Judicial Parity, Litigant Choice and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, supra note 3, at 329-38 (arguing that federal courts are institutionally superior to state courts in adjudicating constitutional questions); Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983) (arguing that state and federal courts are equally likely to favor vindication of constitutional rights).
172. See Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233 (1988) (arguing that it is impossible to resolve the parity debate).
173. Redish, Judicial Parity, Litigant Choice and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, supra note 3, at 338.
174. See, e.g., Neuborne, supra note 134.
175. Federal courts and scholars have at times assumed the competence of state courts without examining the truth of this assertion. See, e.g., Stone v. Powell, 428 U.S. 465, 493-94 n.35 (1976) ("[W]e are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States."); Sheppard v. Maxwell, 346 F.2d 707, 729 (6th Cir. 1965) (holding that trial on the eve of judicial election did not cause presiding trial judge to be biased against defendant and that to entertain such a notion would be to have a low estimate of the integrity of state judges), rev'd on other grounds, 384 U.S. 333 (1966); cf. Bator, The State Courts and Federal Constitutional Litigation, supra note 132, at 630 n.62 (asserting that judicial elections are formalities).
176. See Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, supra note 135.
177. Professor Richard Fallon has labeled those who favor expansive federal court jurisdiction as "nationalists" and those who favor restrictive federal court jurisdiction as "federalists." Nationalists tend to distrust state courts while federalists tend to trust them. Richard Fallon, The Ideologies of Federal Courts Law, 74 VA. L. REV. 1141 (1988).
178. See supra note 133.
179. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (holding that states could not, consistent with the Equal Protection Clause, maintain secregated school systems).
180. 273 U.S. 510 (1927).
181. 409 U.S. 57 (1972).
182. Chisom v. Roemer, 501 U.S. 380 (1991).
183. See supra note 1.
184. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986) (holding that federal law requires states to structure their legislative selection processes in compliance with the Voting Rights Act); Terry v. Adams, 345 U.S. 461 (1953) (invalidating "white primary" system); Strauder v. West Virginia, 100 U.S. 303 (1879) (holding that state could not exclude blacks from grand jury service).
185. See Schotland, Elective Judges, supra note 3.
186. See, e.g., MATHIAS, supra note 2; Grannis, supra note 3; Schoshinski, supra note 1.
187. Although the mere existence of a code of judicial conduct may deter judges from engaging in some behavior, in practice only the most egregious violations of ethical requirements result in sanctions. See MCFADDEN, supra note 75, at 15.
188. Cf. South Carolina v. Katzenbach, 383 U.S. 301, 313-15 (1966) (stating that Congress was justified in applying prophylactic rule to the voting rights context because it had tried a case-by-case adjudication and had concluded that such a system was ineffective to combat voting rights violations).
189. In Del Vecchio v. Illinois Department of Corrections, the court discussed the difficulty in knowing when a judge has been improperly influenced: There is also a practical reason to demand that judges recuse themselves whenever there is an appearance of impropriety: proving actual bias is frequently impossible . . . . [S]ince even a judge with the strongest distaste for a defendant is hardly likely to blurt out, "I am out to get you," the only practical way to demonstrate partiality or conflict is by circumstance and inference. To require a criminal defendant to prove actual bias would ensure that no one could ever succeed in showing that their Fourteenth Amendment rights have been transgressed by a partial judge. 8 F.3d 509, 515 (7th Cir. 1993) (citation omitted), vacated 31 F.3d 1363 (7th Cir. 1994) (en banc).
190. At least two commentators have proposed reform of judicial campaign finance. See Grannis, supra note 3, at 406-19 (advocating mandatory recusal and limits on campaign contributions and expenditures); Schoshinski, supra note 1, at 854-61 (considering self-funding, public funding, limits on campaign contributions and expenditures, and blind trusts).
191. See Buckley v. Valeo, 424 U.S. 1 (1976).
192. See, e.g., MATHIAS, supra note 2, at 142-43. Judicial reform groups often advocate use of merit selection. See, e.g., PENNSYLVANIANS FOR MODERN COURTS, MERIT SELECTION - THE SUPREME CHOICE FOR PENNSYLVANIA (1994); Champagne, Judicial Reform in Texas, supra note 47, at 151-59.
193. See, e.g., MATHIAS, supra note 2, at 142-43. Judicial reform groups often advocate use of merit selection. See, e.g., PENNSYLVANIANS FOR MODERN COURTS, MERIT SELECTION - THE SUPREME CHOICE FOR PENNSYLVANIA (1994); Champagne, Judicial Reform in Texas, supra note 47, at 151-59.
194. Acquiescing in initial election of judges may appear to be inconsistent with the thesis of this Note, but it is entirely consistent as this Note argues that it violates due process for a sitting judge to face election, not for a judge to have been elected that way in the first place.
195. See Chemerinsky, Evaluating Judicial Candidates, supra note 63, at 1991-92 (arguing that it is appropriate to inquire into and to consider the views of prospective judges but that it is inappropriate to subject judges to popular control once they are on the bench).
196. Connecticut, Delaware, Maine, and New Jersey employ gubernatorial reappointment. See MATHIAS, supra note 2, at 144-45.
197. South Carolina, Vermont, and Virginia employ legislative reappointment. Id.
198. The District of Columbia and Hawaii employ reappointment by nominating commissions. Id.
199. See J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721 (1994) (concluding that when a political party believes that it will maintain control over the government, it will construct of non-independent judiciary in order to be able to control the judiciary and that when a political party is unsure about its ability to maintain control, it will construct an independent judiciary so that once the party is out of power its opponents will not be able to control the judiciary).
200. The Supreme Court upheld mandatory retirement for judges against a challenge under the Age Discrimination in Employment Act in Gregory v. Ashcroft, 501 U.S. 452 (1991).
201. Little, supra note 16; cf. supra note 113 (discussion about political aspects of federal judiciary).
202. Even if loyalty and gratitude do play roles an adjudication by federal judges, loyalty and gratitude have their limits. One need only consider the careers of Chief Justice Earl Warren and Justices William Brennan, Byron White, Harry Blackmun, John Paul Stevens, and David Souter to understand that federal judges are perfectly capable of putting loyalty and gratitude to the side. These Justices' decision-making did not generally reflect the political philosophies of their respective nominating presidents.
203. See, e.g., Politics and the Death Penalty, supra note 83, at 287-88 (stating that because of Senate Republican attacks on anti-death penalty federal judicial nominees, state judges seek to be "tough" on the death penalty so as to increase their chances of confirmation to the federal bench); Redish & Marshall, supra note 14, at 498-99 (arguing that political pressure on judges resulting from prospect of elevation to a higher court is inevitable since it would be undesirable to eliminate the largest pool of candidates for such positions).
204. U.S. CONST. amend. XIV, § 5 ("The Congress shall have power to enforce the provisions of this article by appropriate legislation.").
205. See, e.g., Equal Employment Opportunities Commission v. Elrod, 674 F.2d 601, 603-04 (7th Cir. 1982): Bond v. Stanton, 555 F.2d 172, 174-75 (7th Cir. 1977).
206. See Bond, 555 F.2d at 174-75.
207. U.S. CONST. amend. XV, § 2 ("The Congress shall have power to enforce this article by appropriate legislation.").
208. 42 U.S.C. § 1973 (1988 & Supp. V 1993).
209. Jones v. City of Lubbock, 727 F.2d 364, 373 (5th Cir. 1984).
210. See, e.g., Corpus v. Estelle, 605 F.2d 175, 179-80 (5th Cir. 1979) (holding that congressional enactments under Section 5 are constitutional unless proven otherwise beyond a "reasonable doubt"); cf. South Carolina v. Katzenbach, 383 U.S. 301, 326-27 (1966) (holding that rational basis test applies in evaluating congressional enactments pursuant to the enforcement clause of the Fifteenth Amendment).
211. See Gregory v. Ashcroft, 501 U.S. 452, 469-70 (1991) (holding that courts will not infer congressional intent to exercise its power under Section 5); Pennhurst State School v. Halderman, 451 U.S. 1, 15-17 (1981) (holding that federal law does not impose requirements on states under Section 5 unless Congress clearly intendsit to do so).
212. U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
213. New York v. United States, 505 U.S. 144 (1992).
214. See National League of Cities v. Usery, 426 U.S. 833 (1976) (holding that, under the Tenth Amendment, federal minimum wage and hour law may not be applied to state employees), overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (holding that states' primary protection from federal encroachment was not the Tenth Amendment, but rather state representation in Congress). But see Gregory, 501 U.S. at 468 ("[T]his Court has never held that the Amendment may be applied in complete disregard for a State's constitutional powers. Rather, the Court has recognized that the States' power to define the qualifications of their officeholders has force even as against the proscriptions of the Fourteenth Amendment."). Another arguably relevant constitutional provision is Article IV's Guarantee Clause, which states that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government . . . ." The Guarantee Clause has not received extensive judicial attention and it has been held to be nonjusticiable. See Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). Scholars, however, have advocated a variety of interpretations, some of which would forbid Congress from encroaching unduly on states political processes (similar to the Tenth Amendment), and some of which would require federal intervention to prevent states from deviating from a "republican" form of government. For a sampling of Guarantee Clause interpretations, see Conference on Constitutional Law: Guaranteeing a Republican Form of Government, 65 U. COL. L. REV. 709 (1994).
215. The Supreme Court has held that Section 5 empowers Congress to abrogate states' Eleventh Amendment immunity from suit in federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (holding that Congress could exercise its power under Section 5 to subject states to liability under Title VII). Although the Tenth and Eleventh Amendments are distinct in their specific purposes, they both demonstrate the importance of state sovereignty in the American federal system. If Congress can use Section 5 to trump state sovereignty under the Eleventh Amendment, therefore, it may also be able to use Section 5 to trump state sovereignty under the Tenth Amendment.
216. U.S. CONST. art. I, § 8, cl. 1 ("The Congress shall have the Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .").
217. 483 U.S. 203 (1987).
218. Id. at 206-07.
219. Id. at 207.
220. Id.
221. Id. at 207-08.
222. Id. at 208.
223. See id. at 210-11 (stating that even if the Tenth Amendment were an independent bar to direct regulation of state drinking age, conditioning funding is not barred as long as Congress is not inducing the states to do something unconstitutional); Oklahoma v. Civil Service Comm'n, 330 U.S. 127 (1947) (holding that although Congress could not directly regulate the activities of state officials, it could condition federal funding on their conformity to certain standards of conduct).
224. 273 U.S. 510 (1927)
225. 409 U.S. 57 (1972).
226. See supra text accompanying notes 132-148.
227. 347 U.S. 483 (1954) (holding that states could not constitutionally operate segregated schools).
228. See, e.g., Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1412-13 (1995).