REDUCING INJUDICIOUSNESS IN JUDICIAL ELECTIONS
More than 80 percent of the state court judgeships in the United States are filled, at least in part, by popular election. Selection methods vary widely. In some states the only path to a judgeship is through electoral victory, while in others judges are initially appointed to the bench and then, at the end of a fixed term, face a “retention” election to determine whether they will continue in office.
However, no matter what the method of selection, it is all but universally recognized, at least in theory, that judicial elections should have a different character than those for a governorship, a seat in a state legislature or on a city council. For starters, in many states elections for judgeships are officially non-partisan, the candidates run as individuals, not as members of a slate of candidates put forward by a political party. Further, either by statute or ethical rule, judicial candidates face a number of restrictions upon the manner in which they may conduct a campaign. In some states they are forbidden from directly soliciting campaign contributions and must cede this task to a an independent committee of supporters. Most importantly, it is very widely recognized that judicial candidates should refrain from making the types of statements that are common in campaigns for legislative or executive offices. Making commitments to the voters as to the policies one will pursue in office is perhaps the most common feature of elections to executive or legislative office. Judicial candidates, however, should vigorously avoid making promises in the form of declarations as to how they will decide a particular case, or a class of related cases. In addition, while they may announce their own qualifications for the bench, they are expected to avoid attacking their opponents in an aggressive manner.
These restrictions are called for by the nature of the judicial office. Judges decide cases and they are expected to approach decisions in an impartial manner. Indeed impartiality may be said to be the very essence of the judicial function. The U.S. Supreme Court has long held that, when a person goes to court, be it in a criminal or civil matter, he or she is constitutionally entitled to “a neutral and detached judge.” The judges who have conducted election campaigns during which they made commitments to decide certain cases in a particular way, or ferociously lashed out at rival candidates, have a greatly diminished capacity to effect neutrality and detachment. Their decisions then no longer command the respect required to preserve the rule of law in our democracy. Thus it is that judicial elections are expected to be conducted with a much greater degree of decorum than the general run of elections.
Increasingly, however, the decorous nature of judicial elections is under severe attack. For the most part, the source of the attack is not from the candidates themselves. To be sure, there have been recent examples of judicial candidates acting in clearly improper ways, such as the candidate in the March primary elections for the Illinois Supreme Court who ran an attack ad suggesting that an opponent was responsible for certain botched murder trials, when the opponent had in fact presided over none of these. The greatest source of injudicious campaigning infecting judicial elections comes not from the candidates themselves, but from interest groups and political parties that have decided to insert themselves in judicial campaigns in a big way. Consider some examples from recent weeks alone:
- During an election in May for a seat on the Idaho Supreme Court, voters received telephone calls from what purported to be a neutral polling organization, but was in fact a group that had been paid to ask questions highly critical of one of the candidates, incumbent Justice Cathy Silak. The source of the funding for this “push-poll” was not her opponent, but an Idaho citizen who was angry over Justice Silak’s decision in a controversial case involving the federal government’s water rights in Idaho, an issue of great importance in the state.
- Michigan is facing a knock-down-drag-out battle for three seats on its supreme court in November. Although candidates do not run with party affiliations, officials of the Michigan Democratic Party recently distributed a pamphlet at an NAACP event that declared that one of the incumbent candidates, an African-American, believes that Brown v. Board of Education, the epochal 1954 decision of the U.S. Supreme Court that declared racially segregated schools unconstitutional, was wrongly decided. In fact, this candidate, Justice Robert P. Young, agrees with the result in Brown, but has been critical of the Supreme Court’s constitutional reasoning in the case, as have a wide range of legal scholars and commentators.
- A similarly contentious campaign is under way in Ohio. In that race, advertisements have appeared in Ohio newspapers, ostensibly placed by the Michigan Chamber of Commerce, that invite Ohio businesses to relocate to Michigan in order to escape “the activist Ohio Supreme Court.” The ads are clearly directed against the re-election effort of Justice Alice Robie Resnick, who signed on to a decision that struck down tort reform legislation greatly favored by business interests.
- Judicial elections in Minnesota have long been strictly non-partisan affairs. At its convention in early June, however, the Minnesota Republican Party voted to endorse candidates for the state appeals court and supreme court as a means of putting an end to what one prominent Republican referred to as “judicial tyranny.” Party leaders have vowed to continue the practice in future elections even thought the Minnesota Bar Association voted unanimously on June 23rd to oppose endorsements of judicial candidates.
It is much more difficult, however, to contain the activities of interest groups and political parties. Not only are they generally not bound by same statutes and ethical rules to which judicial candidates are subject, they also can claim First Amendment protection for their partisan activities.
A solution, albeit partial, is found with the response of judicial candidates themselves to third-party campaign tactics that breach the long-recognized ethical constraints that govern judicial elections. At the very least, judicial candidates may be expected to publically disassociate themselves from inappropriate campaign activities conducted on their behalf by interest groups or political parties. This alone is not sufficient, however. In the Minnesota case mentioned above, three of the judicial candidates who received the unsolicited endorsement of the state Republican Party have responded by sending a letter to party officials refusing the endorsements and requesting that the party refrain from assisting their campaigns in any way. In so doing, the candidates were going beyond merely recognizing that Minnesota’s public ethics laws prohibit judicial candidates from authorizing third parties to undertake campaign tactics that candidates themselves are forbidden to undertake; they were helping to enforce the law.
This is the sort of response that should be expected of judicial candidates and they should be applauded when they take this stance. After all, we are more likely to find judges who will be “neutral and detached” after they are elected if we see their commitment to honesty and fairness while still running for judicial office. Candidates of the highest moral caliber will therefore reject the help of interest groups and political parties whose tactics show little or no regard for those basic judicial values. Judicial candidates who do not actively oppose the use of dirty tricks on their behalf do not have the character we need in judges.
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW
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