What many would call the accountability process of election (voting
someone in or out of elected positions based on past record or
perceived future actions) is what this article terms the "larger
scandal":
"the larger problem is the scandal of making a judge’s election or
defeat turn on the way he or she decides — or might decide — a
particular case."
Elections make the elected accountable to the electorate, while
appointments make the appointed accountable to the appointers (and
potential impeachers, if applicable).
Recalling that New York State Board of Elections v. Lopez-Torres'
critique of the "evils" of judicial elections mentioned only the
typical burdens of elections like fundraising and so forth, it seems a
large part of the real debate here, both politically and in court
opinions, is about the merits of elections themselves (in the judicial
context). Though this is occasionally acknowledged, the
accountability function of elections is often not addressed at all,
nor is the shift in to whom the judges are accountable given adequate
emphasis when elections eliminate public accountability in favor of
accountability to those with the power to appoint or impeach (and a
diminished accountability at that).
Judicial neutrality is an important value, but it would seem that
accountability to We the People is the more fundamental law and value,
if the two are indeed in conflict.
Paul Lehto, J.D.
On 3/31/11, Sean Parnell <sparnell@campaignfreedom.org> wrote:
Rick Esenberg, law professor at Marquette University (and a member of CCP's
Board of Academic Advisors), has an interesting post at National Review
today regarding Caperton and the significant amount of funding being poured
into Wisconsin's Supreme Court race by third-party groups:
http://www.nationalreview.com/bench-memos/263305/defeating-governor-walker-a
ny-means-necessary-rick-esenberg
I suspect Justice Kennedy is going to regret his vote in that case.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
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