| Section VI |
On-Line Issues: F |
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F. Speech of Judicial Candidates
Cannot Be Stifled, Court Rules
Thirty-one states select at least some of their judges through popular election, a product of the movement known as Jacksonian Democracy during the first half of the 19th century. Fifteen others operate under the Missouri Plan, which utilizes an appointive system for the initial selection of judges, but periodically subjects judges to retention elections in which voters determine whether the judge continues in office.
For much of the 20th century, these electoral campaigns were genteel affairs, barely noticed by the electorate and exceedingly kind to incumbents. Unlike the bare-knuckle tumult that characterized legislative and executive political campaigns, judicial election contests were largely about credentials and temperament. That genteel era is now permanently over. Some candidates for judicial office, challengers and incumbents, distort opponents’ records and attempt to out-do each other about how tough on crime they will be. Third parties have jumped in with outrageous accusations about judges. In recent years, as noted by one commentator, judicial elections have become “costlier, nastier” affairs.
This trend continued despite American Bar Association model canons of judicial conduct that restricted judicial candidate speech. In 2002, the U.S. Supreme Court struck down one of those restrictions.
In Republican Party v. White, 122 S. Ct. 2528 (2002), the Court struck down a Minnesota ethical restriction that prohibited judicial candidates from “announc[ing] his or her views on disputed legal or political issues.” Minnesota voters select their judges by popular election, a mode of judicial selection in place since the state’s admission to the Union in 1858. In 1974, the state adopted the announcement prohibition, two years after it was first proposed by the American Bar Association. Known as the “announce clause” and adopted in many states that elect their judges, the provision carried severe penalties for violations, including disbarment or removal from office.
Gregory Wersal, a two-time candidate for the Minnesota Supreme Court, brought a declaratory judgment action challenging the constitutionality of the announce clause on First Amendment grounds. He was joined in the lawsuit by the Minnesota Republican Party, which complained that the prohibition prevented it from learning Mr. Wersal’s views so it could determine whether to endorse his candidacy.
In Mr. Wersal’s first race, he had criticized state supreme court rulings on crime, welfare, and abortion. A complaint was filed against him, based on the announce clause, though investigatory authorities decided not to pursue it. The complaint nonetheless worried Mr. Wersal so much that he withdrew as a candidate. Two years later, he tried for judicial office again. This time, he sought definitive advice from the state disciplinary body about the extent of prohibitions on his campaign literature. When no guidance was forthcoming, he filed a lawsuit. Both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the clause against Mr. Wersal’s constitutional attack.
Clause Bars Too Much Speech, High Court Says
In reversing those courts and invalidating the announce clause, the Supreme Court found that the restriction barred significant relevant speech that was important to the electoral process, noting that there is “almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.” White, 122 S. Ct. at 2533 (quoting Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 229 (7th Cir. 1993)).
By so holding, the Court placed judicial elections largely in the same First Amendment territory occupied by elections involving the political branches of government. In those races, the Court has long held that discussions of issues and candidate qualifications are at the core of free speech and deserve the highest level of constitutional protection, evaluated under the rubric of strict scrutiny.
Having established that judicial candidates’ free speech rights can only be overcome by a compelling state interest, the Court examined the proffered justification, the preservation of judicial impartiality and its appearance. The Court seriously questioned whether the announce clause had any real relationship to judicial impartiality. It said that a candidate who stakes out a position on a legal or political issue does not demonstrate bias against a party or favoritism toward the other party, which would constitute an improper partiality. Id. at 2535. Although the Court determined that the announce clause might not serve the purpose of preserving impartiality, it also found that impartiality did not constitute a compelling interest sufficient to overcome First Amendment concerns.
The Court also took note of the tension created by a system of electing judges that also restricts the candidates’ speech in a manner that “places most subjects of interest to the voters off limits.” Id. at 2541. If voters are to make a choice among candidates, declarations of views on matters of importance to the job of judging, if opined, are critical to exercising an informed franchise. Concurring Justice Sandra Day O’Connor was more blunt: “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” Id. at 2544 (O’Connor, J., concurring).
This constitutional challenge did not involve a second restriction on judicial candidates’ speech, which prohibits pledges or promises by the candidate. A similar prohibition applied to legislative candidates was invalidated by the Court in Brown v. Hartlage, 456 U.S. 45 (1982).
Although the White Court made no specific suggestion about the constitutionality of this canon, the Court’s analysis strongly indicates that a prohibition that focuses on pledges or promises of results in specific cases would meet constitutional requirements because it furthers the compelling state interest in assuring that each litigant receives the full measure of due process rights in court. Those rights require judges to give weight only to the evidence and issues raised in the case and not pre-judge any matter. On the other hand, application of the pledges or promises prohibition to more generalized or abstract statements of philosophy or inclination would violate the principles enunciated in White. Given the nature of modern campaigning, a test of the promises or pledges clause may not be far in the offing.
--Robert S. Peck
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