Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism

Abstract

From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting judges because one disagrees with some of their decisions is intrinsically inconsistent with the rule of law, while the consequentialist arguments contend that anti-retention campaigns threaten to degrade the integrity, fairness, and impartiality of the states’ judicial systems. In this Article, I push back against the common wisdom in legal circles by arguing that the leading rhetorical strategies of those who seek to defend judges against anti-retention campaigns are fundamentally misguided. I contend that the deontological arguments are usually false and the consequentialist arguments lack the rhetorical power necessary to persuade morally outraged voters to set their anger aside on Election Day. I conclude that either we should abandon judicial retention elections altogether and limit appointed state judges to single terms, or those judges and their defenders should set aside their historic reluctance to engage citizens in civil discourse about controversial rulings and their legal and moral underpinnings.