What Would a Good Conversation About Picking Judges Look Like?: Reflections Inspired by the State Judicial Independence Conference

Earlier this week, I was privileged to participate as a panelist at an important and inspiring conference held here at Seattle University.  Before a standing room audience of over 400 people, thirty judges, professors, lawyers, journalists, and politicians used a variety of formats to poke and prod each other into a sophisticated and nuanced discussion of the threats to judicial integrity and public confidence in the judiciary posed by the rise of big-money state judicial election campaigns.  The conference was inspired by and keynoted by retired Supreme Court Justice Sandra Day O’Connor, who has made the elimination of elected state judiciaries one of the central causes of her retirement years.

The Empty Rhetoric of the Caperton Dissents

In a much anticipated decision, the Supreme Court today held that the Fourteenth Amendment’s Due Process Clause under some circumstances requires elected state judges to recuse themselves from cases involving parties who made massive expenditures on their behalf during their campaigns.   As someone hoping to finish a long-incubating article about due process doctrine during the next few weeks, I have a lot to say about the doctrinal implications of the decisions.

But, for now at least, what jumped out at me was the marked futility of the dissents in this case.  The dissents are an almost amusing encapsulation of the judicial rhetoric of the Rehnquist and early Roberts Courts.  Now, don’t get me wrong.  The dissenting Justices pull out all the rhetorical stops.  (John Roberts gives us a  list of 40 numbered issues that today’s decision leaves open for resolution by later courts and Antonin Scalia gives us a quote from The Talmud.)  But, in the end, their analysis comes down to three broad and familiar points:

(1) The common law didn’t have a rule that required judges to recuse themselves when citizens spent millions of dollars on modern media to help them win popular elections to the bench.

(2) The decision is going to increase the number of people who come to court seeking redress for potentially grave violations of their most basic constitutional rights.

(3) The decision is going to require judges to use their judgment in future cases.

In response, what does the majority say?  Practically nothing.  In twenty pages of carefully limited language, Justice Kennedy almost entirely ignores the dissents’ arguments.  You can almost hear the majority judges clucking their tongues and saying “So???”  And, for that, I applaud them.