Awakening a Slumbering Giant: Georgia's Judicial Selection System After White and Weaver - Camille M. Tribble

• Publication year: 2005

Comment

Awakening a Slumbering Giant: Georgia's Judicial Selection System After White and Weaver^*

The fact that many of us may never live to see the completed work should not appeal to us as a reason for hesitating. This work must have its beginning. If those of us of this generation fail in the initiative, the work is merely passed on to the next generation, and we only bequeath to those that succeed us the ills that we have inherited, and leave to them nothing to merit respect or gratitude.¹

I. Introduction

Judicial selection, no matter its format, is an inherently political process. In the broadest analysis,judges are selected either directly by a popular election or indirectly by an executive branch appointment. The President of the United States appoints federal judges with the advice and consent of the Senate.² In keeping with the states' role as the laboratories of democracy,judicial selection varies widely from state to state. In Georgia judges are elected in nonpartisan elections along with the general primaries in even-numbered years.³ In particular, the Georgia Constitution grants the governor the power to appoint a judge when a judgeship becomes vacant.⁴ Appointed judges stand for reelection with an incumbency advantage. For many judges, appointment is the first path to the bench.⁵

Since 197l, Georgia's governors have followed the example of Jimmy Carter' and used a Judicial Nominating Commission ("JNC") in tandem with their absolute appointment power. When a vacancy occurs, the JNC takes nominations, screens candidates, and gives the governor a list of recommended candidates. However, the governor is not obligated to appoint from the JNC's choices.⁶ The structure of Georgia's JNC also makes the appointment process vulnerable to the appearance of judgeships for sale.

Judicial selection is a hot button issue nationwide. In 2002 the United States Supreme Court decided Republican Party of Minnesota v. White,⁷ and national attention focused on the American Bar Association ("ABA") Model Code of Judicial Conduct.'⁸ In White the Court held that the "Minnesota Supreme Court's canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violate[d] the First Amendment.'" ⁹

Later that same year, the Eleventh Circuit Court of Appeals decided Weaver v. Bonner.¹⁰ The court declared parts of the Georgia Rules of Judicial Conduct and Judicial Qualifications Commission Rules unconstitutional, required the actual malice standard for restrictions on judicial candidate speech, and allowed judicial candidates to personally solicit campaign funds.¹¹ Additionally, in dicta, the court equated judicial elections with all other types of elections.¹² With these heightened First Amendment protections for judicial campaign speech, many scholars foresaw judicial independence and integrity falling before mudslinging and highly politicized judicial campaigns.¹³

In July 2003 the ABA published the Report of the Commission on the 21st Century Judiciary.¹⁴ The ABA Report made recommendations for preserving the judiciary's legitimacy and for improving judicial selection in the face of the increased politicization of state courts.¹⁵ In the summer of 2003, the Court Futures Committee of the Georgia State Bar discussed the larger question of what results an ideal judicial selection process should produce." The statewide focus on judicial selection continued in Georgia in 2004 with a symposium at the Walter F. George School of Law at Mercer University in Macon¹⁷ and a Lamar Inn of Court program in Atlanta."

The balance of law and politics is always a delicate one. The recent decisions of White and Weaver throw the tension between judicial independence and judicial accountability into sharp relief. The judiciary, as an institution, depends on public trust for the viability of the rule of law it propounds. Nationwide, judicial selection reform efforts are addressing campaign speech, campaign finance, voter education, and judicial evaluation. The larger goals of judicial selection reform should be reflected in Georgia's judicial selection processes.¹⁸

This Comment will analyze the decisions in White and Weaver, discuss the historical and current Georgia judicial selection system, and examine the 2004 statewide appellate judicial elections in light of recent changes to the judicial selection landscape. The Georgia Supreme Court amended the Georgia Code of Judicial Conduct after the decisions in White and Weaver.¹⁹ In an attempt to preserve actual and apparent judicial integrity and maintain nonpartisan judicial elections, Georgia has generated more private speech through the Georgia Committee for Ethical Campaigns, proposed judicial campaign finance legislation, and proposed State Bar judicial ethics reform. This Comment suggests that Georgia should also consider creating a more patently independent Judicial Nominating Commission to ensure that the goals of judicial integrity are met.

11. The First amendment Backdrop

A. Republican Party of Minnesota v. White

In a splintered 5-4 opinion, the United States Supreme Court held in Republican Party of Minnesota v. White" in June of 2002 that the announce clause in Minnesota's Code of Judicial Conduct violated the First Amendment.²¹ Five different justices wrote opinions."

1. Factual Background. Minnesota elects its judges in nonpartisan races.²³ Canon 5(A)(3)(d)(i) of the Minnesota Code of Judicial Conduct stated that a judicial candidate shall not "announce his or her views on disputed legal or political issues."²⁴ Minnesota's "announce clause" was modeled after the 1972 ABA Model Code of Judicial Conduct.²⁵ In 1996 Gregory Wersal ran in the election for associate justice on the Minnesota Supreme Court. His campaign literature attacked prior decisions of the Minnesota Supreme Court on crime, welfare, and abortion issues.²⁶ The Lawyers Professional Responsibility Board ("Lawyers Board") issued advisory opinions, "investigate[d] and prosecute[d] ethical violations of lawyer candidates for judicial The Lawyers Board dismissed a complaint that alleged Wersal's literature was improper. In the dismissal the Lawyers Board stated that it doubted the announce clause could be constitutionally enforced. Wersal withdrew from the 1996 election, but ran again in 1998 for the same position. Wersal requested an advisory opinion on the planned enforcement of the announce clause from the Lawyers Board. The Lawyers Board did not respond to his enforcement question because Wersal did not include a list of his proposed announcements. Nevertheless, the Lawyers Board reiterated its opinion that the constitutionality of the announce clause was doubtful. Wersal filed a federal lawsuit, argued that the announce clause violated the First Amendment, and sought declaratory and injunctive relief. Wersal did not answer questions during the campaign because he was wary of violating the announce clause. On cross motions for summary judgment, the district court found for the Lawyers Board. The Eighth Circuit Court of Appeals affirmed.²⁸ The majority of the Supreme Court reversed and held that the canon prohibiting judicial candidates "from announcing their views on disputed legal issues violate[d] the First Amendment."²⁹

2. The Majority Opinion. Justice Scalia framed the issue as "whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues."³⁰ The text of the announce clause states that a judicial candidate shall not "announce his or her views on disputed legal or political issues."³¹ The scope of the announce clause covers more than a promise to decide an issue one way. It also covers a judicial candidate's statement of current position on an issue. All the parties agreed that the announce clause was separate and distinct from the "pledges or promises" clause.³² The Court specifically restricted its opinion to the announce clause and did not address the pledges or promises clause.³³

Justice Scalia also addressed extra-textual limits placed upon the announce clause.³⁴ A Judicial Board opinion allowed judicial candidates to criticize past decisions³⁵ as long as the judicial candidate does not also express an opinion against stare decisis.³⁶ The district court limited the announce clause's application to "disputed issues that are likely to come before the candidate if he is elected judge."³⁷ The Eighth Circuit accepted the district court's limitation and added another limit on the announce clause. According to the Eighth Circuit, the announce clause allows broad statements about case law and judicial philosophy³⁸ unless the statements are applied to specific issues.³⁹ The announce clause allowed a judicial candidate to discuss his character, education, work habits, and approach to administrative duties. The Judicial Board also kept a list of preapproved questions which a judicial candidate could answer.⁴⁰

The announce clause restricted speech in two ways. First, the clause was a content based prohibition. Second, the announce clause burdened core speech about judicial candidates' qualifications for The Court applied the strict scrutiny test, so the Lawyers Board had "the burden to prove that the announce clause is (l)narrowly tailored, to serve (2) a compelling state interest."⁴² The announce clause is narrowly tailored only if it "does not 'unnecessarily circumscrib[e] protected expression.'"⁴³ The Lawyers Board argued for two compelling state interests. They argued that the announce clause preserved both the impartiality and the appearance of impartiality of the state judiciary by protecting the due process rights of litigants and upholding public confidence in the judiciary, respectively.⁴⁴

Justice Scalia supplied three possible definitions for "impartiality" after chastising the Lawyers Board for failing to...