FORUM

Judicial independence is severely compromised by the U.S. Supreme Court’s recent decision that a state cannot prohibit judicial candidates from announcing their views on disputed political or legal issues (Republican Party of Minnesota v. White, No. 01-521 - decided June 27, 2002). The decision is likely to exacerbate the trend toward greater politicization of judicial contests in the thirty-nine states in which some or all judges are elected. It has generated expressions of dismay from officials of the American Bar Association and others who perceive its baneful impact on judicial independence.

In its five-to-four decision, the Court held that the so-called “announce clause” of the Minnesota Supreme Court’s canons of judicial conduct violated the First Amendment’s prohibition against restrictions on free speech. Applying “strict scrutiny” to the canon, the Court emphasized that the rule was not narrowly tailored to serve the state’s compelling interest in an impartial judiciary because it curtailed speech involving abstract issues rather than speech concerning specific parties whose cases might be heard by the successful judicial candidate. The Court also determined that the canon was an “underinclusive” means of promoting an impartial judiciary because it did not apply to speech by a person before she became a judicial candidate or after she became a judge.

Since the Minnesota clause was identical to canons in eight other states and resembled prohibitions in twenty other states, the Court’s decision will have an impact far beyond Minnesota. Unfortunately, some states, notably Florida in 1994, already had voluntarily scrapped their “announce” clauses, a reflection of the growing politicization of state judicial contests.

The Court’s invalidation of the announce clause will not actually permit judicial candidates to commit themselves to rule in a specific manner in actual cases. The Court correctly pointed out that a judge who announces his views on disputed issues does not specifically bind himself to rule in a particular manner in actual cases and that the Court’s ruling would not interfere with a separate rule in Minnesota and twenty-six other states that prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” The Court’s decision likewise does not disturb canons that many states have adopted to prohibit judicial candidates from making false or misleading statements about her qualifications or record or those of her opponent.

As Justices Stevens and Ginsburg pointed out in their dissents, however, a judicial candidate’s announcement of a position on an issue of law can create bias or the appearance of bias against specific parties whose cases later come before the judge insofar as the candidate is implying or even promising that she will rule in a particular manner in specific cases involving flesh-and-blood litigants. A candidate’s announcement of his views on disputed issues certainly encourages the candidate, if successful, to adhere to the same position in adjudicating actual cases. Even if she keeps an open mind, litigants are likely to perceive that the judge’s mind is closed. Such perception cannot help but to erode public confidence in an impartial judiciary.

While the Court correctly observed that it is not “self-evidently true” that a judge is more likely to feel more compelled to maintain consistency with statements made during a campaign than with statements made before the campaign, there is surely more a danger that a judge will feel bound by campaign statements since such statements obviously were made for the purpose of winning votes and a judge understandably might feel that he was betraying voters who relied upon his representations. As Justice Stevens’s dissent pointed out, “the very purpose of most statements prohibited by the announce clause is to convey the message that the candidate’s mind is not open on a particular issue. The lawyer who writes an article advocating harsher penalties for polluters surely does not commit to that position to the same degree as the candidate who says ‘vote for me because I believe all polluters deserve harsher penalties.’ At the very least, such statements obscure the appearance of openmindedness.”

Similarly unconvincing is the Court’s suggestion that prohibitions against announcement of views on disputed issues during election campaigns is not destructive of public confidence in the judiciary’s impartiality since judges must take positions on disputed legal issues in their judicial decisions. A judge must of necessity take such positions in order to perform her duties. Moreover, the announcement of a position in the course of a judicial proceeding is far less likely to create the appearance of bias than is the announcement of a position for the purpose of grubbing votes.

The danger of bias or the perception of bias may be ameliorated in part insofar as many of the controversial issues that the Court’s opinion permits judicial candidates to discuss are not likely to create an appearance of direct bias because they are not likely to involve issues upon which state judges have significant discretion. For example, the Court’s decision is likely to encourage judicial candidates to discuss abortion, legalization of marijuana, and gun control -- hot button political topics, but ones in which the decisions of state court judges are largely bound by federal law and federal and state legislation. Discussion of such issues nevertheless could create an appearance of bias in cases, for example, involving injunctions against anti-abortion demonstrators, defendants charged with marijuana offenses, or crimes in which the defendant used a gun.

The Court’s free-speech analysis also fails to make sufficient distinctions between judicial elections and elections for executive and legislative offices. The Court correctly pointed out that voters have a need for information about the political leanings of judicial candidates since “[n]ot only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the States’ constitutions as well.” As Justice Ginsburg observed in her dissent, however, “judges perform a function fundamentally different from that of the people’s elected representatives.” Similarly, Stevens pointed out that “[t]here is a critical difference between the work of the judge and the work of other public officials.” Stevens explained that “[i]n a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to popularity.”

Curtailment of the ordinary freedom of speech enjoyed by private citizens is small price for judicial candidates to pay to protect judicial integrity. No one is compelled to seek judicial office. As Oliver Wendell Holmes, Jr. famously observed in an 1892 decision in which the Supreme Judicial Court of Massachusetts upheld the firing of a policeman who had made a political speech, the police officer may have had “a constitutional right to talk politics,” but he had “no right to be a policeman.” Although the courts have greatly expanded the speech rights of public employees during the past century, the Court until its decision last month had never suggested that state authorities could not impose broad restrictions upon judicial speech in order to protect judicial independence.

Proponents of the position taken by the Court argue that the voters need to know the position of judges on disputed legal and political issues in order to make informed choices at the polls. The Minnesota rule, however, already permitted candidates to discuss many issues that might assist the voters, including character, education, work habits, and judicial administration. The Judicial Board also promulgated a list of specific issues that candidates could discuss, including his or her opinion on cameras in the courtroom and how he or she would ensure better treatment for women minorities in the judicial system and reduce caseloads and administrative costs.

Moreover, voters can certainly discern the general political tendencies of judicial candidates from their pre-campaign statements and affiliations. As the Minneapolis-St. Paul Star-Tribune wryly noted, “there were hints” about the political predilections of the judicial candidate who challenged the constitutionality of Minnesota’s “announce clause” insofar as he was chair of a conservative debating society, a Republican, a member of the National Rifle Association, and an outspoken opponent of abortion.

Furthermore, the Court’s decision is likely to impose burdens on an already strained judicial system because it will almost certainly encourage more recusals and disqualification motions. Recusals and disqualifications may create inequities in judicial workloads, and disqualification motions always consume judicial resources and client money. Similarly, the decision is likely to consume scarce judicial resources by generating controversies about whether judicial candidates have crossed over the line between commenting on controversial issues and making commitments involving specific cases. Various legal commentators predict that the Court’s vagueness about this line will increase rather than diminish litigation and judicial discipline proceedings involving campaign speech. Likewise, the decision may breed even more confusion among judicial candidates about what they can and cannot say. It is unlikely, for example, that the decision will enable Florida to reduce the length of its 85-page guidebook and “do’s” and “don’ts” of judicial campaign speech and conduct.

Although some commentators have suggested that judicial candidates might make informal agreements to exercise restraint in their discussion of controversial issues, such agreements are far easier to make than to enforce and one can easily imagine how they could penalize a scrupulous candidate who refrains from discussing such issues while his opponent violates his pledge with impunity.

While judicial independence has been quite resilient throughout American history, it is still a fragile quality that needs ever-vigilant nurturing. Judicial independence requires the perception that the judiciary stands above politics even though judges exercise a critical political function. As Justice Ginsburg aptly declared in her dissent, “[t]he perception of that unseemly quid pro quo - a judicial candidate’s promises on issues in return for the electorate’s votes at the polls - inevitably diminishes the public’s faith in the ability of judges to administer the law without regard to personal or political self-interest.”

It is highly ironic that the Court’s so-called “conservative” majority would promulgate a decision that is potentially so destructive of judicial dignity and independence. One would suppose that insulation of the judiciary from political temptations is a cornerstone of any “conservative” philosophy, particularly in the United States.

Many conservatives are rumored to welcome the decision insofar as it will help conservative candidates to make voters more aware of that they favor such popular positions as tort reform, stiffer criminal sentences, and criminal law procedures that place fewer restrictions upon law enforcement authorities. The willingness of so-called conservatives to permit the debasement of the judiciary in such a radical manner is yet another illustration of how American “conservatism” is no longer conservative. Rejoicing over the decision is not entirely confined to conservatives, however. Many chapters of the American Civil Liberties Union welcome the decision as a victory for free speech.

Although I myself favor some of the political positions advocated by conservatives who hail the Court’s decision, I believe that erosion of judicial independence is far too high a price to pay for the election of more “conservative” judges. Moreover, it is always myopic to tamper with fundamental principles in order to achieve short-term goals, for more robust judicial speech could easily favor liberal candidates in the not-so-distant future.

Some true conservatives also may hope that the decision will encourage the selection of judges through procedures other than popular election insofar as it helps to discredit judicial election contests. Justice O’Connor seems to have hinted at this in her concurring opinion, which expressed fear that “the very practice of electing judges” undermines a state’s interest in an impartial judiciary. Deploring the growing danger that elected judges may feel beholden to special interest groups that finance ever-more expensive judicial contests, O’Connor concluded that “[i]f 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.” It is unlikely, however, that the politicization of campaign speech that the Court’s opinion encourages will spur any significant movement toward alternative means of judicial selection. Indeed, the Court’s opinion is more likely to discourage alternatives to popular election since it the intensification of partisanship in judicial contests serves the interests of wealthy and powerful forces on both the left and the right ends of the political spectrum. With judicial candidates now more free to express their opinions on controversial issues, such interests have more incentive to promote the candidacies of persons who they believe will support their causes since such candidates now have more opportunity to convey to the voters their support for such causes. This, too, will tend to erode public respect for the judiciary and threaten the judicial independence that protects every person and institution in this nation. Ultimately, every American was a loser in the Court’s unwise decision.

July 25, 2002

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