Suchergebnisse

The right to an impartial arbiter is the bedrock of due process. Yet litigants in most state courts face judges subject to election and reelection – and therefore to majoritarian political pressures that would appear to undermine the judges' impartiality. This tension has existed for as long as judges have been elected (and, to some extent, for as long as they have been appointed, in which case campaigns often take a less public but equally politicized form). In recent years, however, this tension has become more acute. Today, state courts around the country increasingly resemble – and are increasingly perceived to resemble – interest group battlegrounds in which judges represent particular constituencies in addition to, or even instead of, the rule of law. Two key developments are driving this transformation: the role of money in judicial elections is growing while the canons of conduct are shrinking. These trends are creating dramatic new threats to judicial impartiality and due process. Taking our cue from Justice Anthony Kennedy's concurrence in Republican Party of Minnesota v. White, we explore in this article a possible solution: making judicial recusal rules more rigorous.

In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority. The attacks are fueled in part by the growing influence of money in judicial elections and the dismantling of codes of judicial ethics that once helped to preserve the distinctive character of the judiciary, even during the course of campaigns for the bench. The unabated acceleration of those trends erodes public confidence in the ability of courts to serve as fair arbiters of disputes. Moreover, the undifferentiated cynicism bred by those trends tars all courts-elective and appointive, state and federal-with the same brush, undermining resistance even to extreme anti-judicial rhetoric and activism. The threat is sufficiently serious to command attention at the highest levels of the judiciary. The time has come for elected courts, which are at the eye of the storm, to replace anxiety about declining public trust with active measures to restore it. Without a meaningful response to legitimate concerns induced by their own campaign-related behavior, judges cannot expect the public to rise to their defense when their authority is questioned on illegitimate grounds. To protect judicial independence, generally, elected courts must embrace the public demand for accountability – not by yielding to pressure on hot-button issues, but by recognizing that with independence comes a duty to preserve both the reality and appearance of justice. Elected courts must demonstrate their accountability for the decisions ...