Breaking the Most Vulnerable Branch: Do Rising Threats to Judicial Independence Preclude Due Process in Capital Cases?

Abstract

We have been asked this morning to address whether the attacks on the judiciary and the efforts of politicians to change the judiciary so it will do things the politicians want it to do are affecting due process in capital cases. The answer to that question is yes.

In the many states where judges are elected, judges are vulnerable to being voted off the bench for unpopular decisions. Two members of this panel, Charles Baird and Penny White, were voted off courts because of their votes in capital cases. State judges who are subject to elections know that casting any vote in a case to grant relief to a death row inmate may literally be signing their own political death warrants. It is difficult for many judges to avoid being influenced by this.

Due process is increasingly being affected at the federal level as well, even though federal judges have tenure for life, because of the politicization of the appointment process.