New Scholarship: Pozen on Judicial Elections and Popular Constitutionalism
Posted by kswisher on Monday, December, 20, 2010
David Pozen has just married the practice of judicial elections to the popular theory of popular constitutionalism. My first thought: If he is right that judicial elections are really the best “vehicle for achieving popular constitutionalism [by being] genuinely empowering without being anarchic, accessible to the masses yet mediated by professionals, [and] transformative yet realistic,” then I must not be a popular constitutionalist. But his balanced and insightful analysis convinced me to read on. Here is the abstract:
One of the most important recent developments in American legal theory is the burgeoning interest in “popular constitutionalism.” One of the most important features of the American legal system is the selection of state judges—judges who resolve thousands of state and federal constitutional questions each year—by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states’ experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.
David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047 (2010), a link to which can also be found in Articles.
The Judicial Ethics Forum (JEF) 
Monroe Freedman said
Defense of re-elected judges ignores the view expressed by Alexander Hamilton in The Federalist No. 78. Hamilton explained that fidelity to the Constitution and laws, and to the rights of individuals is “indispensable” in the courts of justice.” He cautioned, however, that such indispensable fidelity cannot be expected from judges who hold their offices subject to re-election. Regardless of who might exercise the power of retention, Hamilton wrote, the judges’ fear of displeasing that authority would be “fatal to their necessary independence.” Specifically, if the power of retention were to reside in the people, or to persons chosen by them for that purpose, “there would be too great a disposition to consult popularity” rather than assuring that “nothing would be consulted but the constitution and the laws.”
Hamilton’s concerns were illustrated by the case of Tennessee Supreme Court Justice Penny White. In 1996, her retention was defeated by a campaign that relied upon her vote against imposing the death penalty in a case in which she (and four other justices) had, in fact, affirmed the defendant’s conviction. That outcome was “twisted in inflammatory mass mailings,” which denounced Justice White as wanting to “free more and more criminals and laugh at their victims.” After Justice White’s loss, Tennessee Governor Don Sundquist asked, “Should a judge look over his shoulder about whether they’re [sic] going to be thrown out of office?” He answered his own question, “I hope so.”
Hamilton was referring to federal judges, because he was discussing Article III of the Constitution. However, his analysis is now equally applicable to state court judges under the due process clause of the Fourteenth Amendment.
Citations to the quotations are in Freedman & Smith, Understanding Lawyers’ Ethics sec. 8.10 (4th ed., 2010) (Matthew Bender/LexisNexis).