Should we abandon the presumption of impartiality with regard to elected judges?

The brilliant David Rivkin in the LA Times (link to article):

Thirty-nine states, including California, elect some judges, with 87% of the nation’s state judges facing some kind of election. Yet judges, both elected and appointed, enjoy a “presumption of impartiality” stemming from common law. With narrow exceptions, such as when a judge has a direct financial interest in the case before him, the law assumes his or her fairness and grants discretion over recusal decisions. In Caperton, the court is being asked to decide whether elected judges, who often depend on contributions in their campaigns, should have the same discretion as appointed judges in deciding when they must recuse themselves.

Federalism is indeed a series of laboratories. I’d love to look at the bodies of caselaw and legislation from the elected v. appointed jurisdictions just to see how different they really are. If people are to resort to the political process rather than to the courts how different do the sources of law wind up evolving over time?


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