Always with the crocodile. … This is my father Otto’s most famous quote. As usual, he had a point (about how the need to get elected influences a judge’s decisions– “You cannot forget the fact that you have a crocodile in your bathtub”). I tend to think the best solution is to have judges appointed for long (12-15 year) non-renewable fixed terms rather than Professors Chemerinsky and Sample’s plan to have legislatures limit free speech in judicial campaigns–especially since even the professors admit that part of the problem has been fixed by rules requiring judges to recuse themselves from cases involving major donors. As the profs say:
[C]orporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.
As with the “cruel trilemma” that would be faced by guilty defendants without the Fifth Amendment–perjury, self-incrimination or contempt of court–it’s hard to see why we shouldn’t see this “perverse guessing game” as something devoutly to be wished on on the corporate and union campaign spenders. …
You have to wonder if Chemerinsky and Sample are hyping the “problem” of judicial elections because they think they’ve spotted a clever opening wedge for controlling political spending generally. After all, once the Supreme Court has held that the “compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending,” it would be a whole lot easier for the Court (perhaps with a changed, more liberal membership) to find other “compelling interests” that were “sufficient” to block speech (or ordinary door to door organizing, for that matter), even for unincorpoated lone citizens. …