Scott Gaylord publishes on judicial selection in Michigan State Law Review
The most recent addition to Elon Law Professor Scott Gaylord’s scholarly work on judicial selection includes publication in the Michigan State Law Review. The article, titled, “Unconventional Wisdom: The Roberts Court’s Proper Support of Judicial Elections,” (2011 Mich. St. L. Rev. 1521) was published in the law review’s 2011 edition.
The article provides an historical overview of judicial selection in the United States, discussion of several Supreme Court decisions related to judicial selection, and a defense of the judicial election process.
“As evidenced by the fact that thirty-seven states still use judicial elections in some form, there is no crisis, and the Roberts Court's respect for the First Amendment rights of those engaged in judicial elections will ensure that none develops,” Gaylord writes in his article. “Judicial elections preserve the legitimacy of the Court—whether that is discussed in terms of independence or impartiality or integrity—by ensuring that (i) the judiciary remains independent of the legislative and executive branches while (ii) being directly accountable to the people.”
In his article, Gaylord argues that, while no selection method is perfect, judicial elections are the most appropriate method for selecting state court judges, in part because merit-based selection systems, either through executive or legislative branches, have failed to provide a politics-free judiciary.
“In serving as a check on the legislative and executive branches, judges sometimes make common law. At other times, they interpret or invalidate validly enacted legislation. But they do all of these things through their own unique political perspective, which is true for both elected and appointed judges,” Gaylord writes. “With judicial elections, however, voters are able to learn about these views and hold judges accountable if they decide cases in ‘activist’ ways or fail to exhibit judicial restraint. As a result, the Roberts Court has properly extended First Amendment protection to judicial elections.”