There is reason to believe that a majority of five justices can be persuaded to hold that the practice of electing judges, and, particularly, of re-electing judges, violates the Due Process Clause of the Constitution.
In Republican Party of Minnesota v. White there are strong dicta by a majority of the Court that Due Process is violated whenever a judge who is subject to reelection decides a controversial case. The reason is that there is an appearance in such cases that the judge is not impartial. That conclusion was expressed by Ginsburg, writing for the four dissenting Justices, and by O’Connor, who parted from the majority to write a separate opinion addressing the issue.
Since White was decided, Rehnquist and O’Connor have been replaced by Roberts and Alito. If either of them adopts O’Connor’s views, there would still be a majority in favor of invalidating judicial elections on Due Process grounds. Moreover, it appears that Justice Kennedy could be persuaded to adopt that position. He did not refer to Due Process in the White case, but there he joined an opinion based on the First Amendment, which made it unnecessary to reach Due Process.
However, Kennedy has demonstrated a particularly strong concern with the appearance of impartiality. He joined the majority opinion in Liljeberg v. Health Services Acquisition Corp., which quoted an opinion by Frankfurter. Explaining his recusal from a case, Frankfurter said: “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Also, in his concurrence in Liteky v. U.S., Kennedy relied on Due Process cases in explaining that “In matters of ethics, appearance and reality often converge as one,” and in referring to the importance of “the appearance of fairness and neutrality.”
Thereafter, in Caperton v. A.T. Massey Coal Co., Inc., Kennedy explained for the Court that “the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.” Accordingly, Kennedy might well be the fifth vote in favor of invalidating the practice of re-electing state court judges.
Monroe H. Freedman,
The Unconstitutionality of Electing State Judges, 20 Verdict
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