Why the left and right disagree on judicial elections

I imagine that many voters find judicial elections to be confusing. Candidates seem to have but one message. They say that they will simply apply the law and not engage in politics. They reject any suggestion that they will inject their politics into judicial decision-making or be an “activist” judge. In judicial elections, there are only little Scalias out there.

Yet voters notice that the political cognoscenti – the ideological movers and shakers – seem to care an awful lot about who wins these races. They typically see liberals and Democrats supporting one candidate while conservatives and Republicans support another. Although no one seems willing to admit it, it sure looks like something political is going on.

The answer lies in the past one hundred years of American legal and political history. Early twentieth century Progressives – in many ways the antecedents of today’s American left – came to be frustrated with our Constitution. Our Founders mistrusted power and created a lattice of branches of government and dual sovereigns in which each checked the authority of the others. Power in the federal government was divided among the executive, judiciary and legislature. The respective spheres of the state and federal governments limited each other.

If your objective is limited government and individual liberty, this is a pretty good framework. But if your goal is to use the state to remake the world, it can be awfully frustrating. As early as 1908, Woodrow Wilson called for a “Darwinian Constitution,” one that would not serve as permanent legal framework for governing but that would “live” and “grow” and “change” to accommodate the desires of the Progressives.

Put simply, the project of the American legal left became two fold. One was to remove barriers to the authority of the state, particularly the federal government. The other was to intervene where the political branches had “failed” to “address” social problems in an acceptable way. Thus, over the years, we have seen the authority of Washington and the courts expand dramatically.

To accomplish these objectives, the legal left adopted a number of interpretive methods and theories that would maximize the authority of judges. For example, to simply apply the law as it is written – something that lawyers today call “textualism” – was derided as simplistic. Better to somehow discern a “spirit” that goes beyond the law’s mere words. Nor was it necessary to interpret any ambiguity in the law to mean what the people who enacted it thought it meant – what lawyers today call “origninalism.” If the idea is to change the Constitution’s limits on state and federal authority or to act where the legislature and executive has not, judges cannot be constrained by the “dead hand of the past.”

Broad constitutional principles like equal protection and due process became malleable and protean enough to justify substantial judicial interventions in the political and governing process. Litigation became an important tool for making policy.

Conservatives have criticized these developments as lacking legitimacy. Judges, they have argued, should not be given the discretion to depart from the plain or original meaning of constitutional or statutory text. While courts have a duty to ensure that the government abides by constitutional limitations – and even to strike down laws where necessary, the law’s text and original meaning should limit them. To do anything else would turn judges into legislators and subvert our constitutional separation of powers.

This is admittedly an oversimplified “op-ed” version of the matter and an extended discussion would involve considerably more detail and nuance. But it helps to understand why left progressives and Democrats, on the one hand, and conservatives and Republicans on the other, seem to differ so sharply on judicial elections. They have come, over the years, to have very different views of the law and the judicial function.

We see this in the current race between Justice Rebecca Bradley and Judge Joanne Kloppenburg. Bradley says that she is a jurist in the mode of Antonin Scalia and will “apply the law as it is and not as I wish it to be.” Given an opportunity to explain, she will elaborate on the themes that I’ve briefly outlines.

Kloppenburg, on the other hand, compares herself to Justices Ruth Bader Ginsburg and Sonia Sotomayor, jurists who have tended to have a more expansive view of the authority of courts to clear the way for or, if necessary, even implement the left progressive agenda.  Kloppenburg, herself, has said that she believes it is the role of judges to interpret the Constitution to create “a more equal society.” Whatever that means and whether it is desirable or not, such an objective is quite ambitious and is going to require an activist judiciary. It goes beyond simply applying the law and necessarily means more power for judges and the state and less for legislators and private citizens. It means rule by lawyers.

Kloppenburg reinforces that message by mentioning Scott Walker whenever she can. It is a dog whistle to the political left that says, “I’m one of you.”

When seen in this way, the hotly contested nature of our judicial elections is not an aberration or a disgrace. They are, with all their imperfections, about something that matters.