March law review madness has pretty much kept me from getting my blog on, so I have a whole slew of pontification on back order.
One of the things I am wondering about is campaign rhetoric in judicial elections. We all hate it, but why?
I have been thinking about it through the lens offered by one of my favorite law school professors, Duncan Kennedy. He said that there were two species of error in the way that non-lawyers think about the law. One is lay cynicism — the idea that judges do whatever they want to and that judging was just politics by another name. (There was, of course, a sense in which Duncan believed this — probably still does — but it was at a structural rather than decisional level.)
One of the things that I think we hate about many judicial campaign ads is that they appeal to this lay cynicism.
The adverts excorciate an opponent for siding with criminals or corporations. They promise that candidate Joe Brown will support law enforcement and “keep us safe.” They criticize a judge for enforcement of, say, the Fourth Amendment on behalf of a bad guy and illustrate the point with an empty swing or a dead body. We don’t like the ads because they take an overly consequentialist view of the judicial role and mislead the public about the way in which the law might constrain the discretion of a judge and that broader interests may compel a result that, viewed in isolation, seems wrong.
But what some critics of this type of campaigning call for appeals to lay naivete – the idea that judging is a technocratic process in which political and philosophical differences are unimportant. Judges are technicians and legal acumen is all that matters. Judicial elections, they say, ought to be about qualifications, experience, and endorsements.
This, in my view, is just as misleading. Those of us who consider ourselves “in the know” on the matter of judicial decisionmaking know that political and philosophical differences do matter. To pretend that they are not there is to see the law as Holmes’ brooding omnipresence in the sky — something the cognoscenti know (or think they know) that it is not.
So how should judicial candidates conduct themselves? More to come.
Cross posted at Shark and Shepherd.