Constitutional Law

David Pozen: The Irony of Judicial Elections

In an article just published in the Columbia Law Review, Yale Law School Heyman Fellow David Pozen writes about what he calls "the irony of judicial elections." The central irony, according to Pozen, is that as judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes.

He reaches this conclusion after first synthesizing arguments for and against elective judiciaries and exploring how recent developments have increased both their costs and their benefits. Ultimately, Pozen concludes:

I am not suggesting that there are universal answers when it comes to state judicial selection—just that the debate is being conducted on the wrong terms. Those who would support elective state judiciaries ought to be openly celebrating the new era. Those who would have the judiciary be more than just another majoritarian branch might do well to abandon the accommodationist posture, at least for a moment, and to remind the public and each other that there is no adequate remedy for this threat save to dismantle judicial elections.

Full post as published by ACS Blog on December 31, 1969 (boomark / email).