Aligning Judicial Elections with Our Constitutional Values: The Separation of Powers, Judicial Free Speech, and Due Process

Authors

Jason D. Grimes

Abstract

This Note consists of five Parts. Part II traces the historical development of state judicial elections from the perspective of the Framers' doctrine of separation of powers. It shows that judicial elections were borne more of historical contingency than constitutional design. Part II then assesses the recent history of elections to the Ohio Supreme Court. It determines that Ohio's judicial elections share two problems with many other states: millions of dollars given to judicial candidates by special interests likely to appear before the court, and candidates' broad freedom of speech to earn the political and financial support of these special interests. Part III analyzes the important cases discussing judicial candidates' free speech rights and litigants' due process right to an impartial tribunal. Further, it explores how these conflicting constitutional rights may be reconciled. Part III then looks at recent cases where litigants or their counsels have sought judges' recusal because of perceived bias. Finally, Part III weighs the rights of judicial candidates, litigants, and contributors and concludes that there is a compelling state interest in severely limiting those of contributors by instituting full public financing of judicial campaigns. Part IV looks at several ways in which current judicial election systems may be improved to bring back judicial independence and impartiality. It argues that the standard of judicial recusal must be changed to require judges to bow out of many more cases than current practice dictates. Part IV then sketches out the possibilities (and perils) of full public funding of judicial elections. The best plan, which would require no taxpayer money, would allow states to retain judicial elections while reclaiming the Framers' separation of powers interest in judicial independence. Part V concludes this Note with alternate visions of the near future where both “worse-case” and “better-case” scenarios have taken hold.

Recommended Citation

Note, Aligning Judicial Elections with Our Constitutional Values: The Separation of Powers, Judicial Free Speech, and Due Process, 57 Clev. St. L. Rev. 863 (2009)