The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. This test would also be mindful of the larger concern voiced by the Caperton dissent: that Caperton motions will undermine the integrity of the judiciary. In sum, the flexibility and elegance of the test in this context is also made timely in light of the uncertainty raised by the Court’s expansive rulings in the areas of judicial elections, due process protection, and First Amendment rights. Lower courts should be relieved that they would not need to break new ground to apply Mathews in this context. And Chief Justice’s prediction that the Court will have to revisit Caperton to measure the “extremeness” of the facts in future cases may not come true after all.
Date of Authorship for this Version
Judicial elections, Judicial recusal, Due process
Spektor, Andrey and Zuckerman, Michael A., "Judicial Recusal & Expanding Notions of Due Process" (2010). Cornell Law School Graduate Student Papers. Paper 22.