Judges as Politicians: The Enduring Tension of Judicial Elections in the Twenty-First Century

Elections transform the basis of judicial legitimacy. Whereas a permanently appointed judiciary finds support in its supposed neutrality, the democratic judiciary demands responsiveness. Yet while this is obvious to scholars, the electorate, and most judges—and is in fact confirmed by much statistical data—the Supreme Court and others continue to insist that judicial campaigns can be sculpted to ensure robust democratic debate without compromising the bench’s impartiality. This Essay rejects the notion that the court can be both democratic and disinterested.

It reviews the volatile history of judicial elections as well as the modern web of distinctions between protected and proscribable campaign speech. It concludes that elections are incompatible with judicial impartiality, that the elected judiciary of the twenty-first century is a third political branch charged with delivering democratic goods, and that it delivers regularly.