The elusive middle ground: a proposed constitutional speech restriction for judicial selection.

• Author: Sethi, Neil K.

INTRODUCTION

1. THE CANDIDATES' AND THE PUBLIC'S INTERESTS IN UNRESTRICTED

   CAMPAIGN SPEECH

2. THE STATE'S INTEREST IN PRESERVING THE INTEGRITY

   OF ITS JUDICIARY OUTWEIGHS A SPEECH RESTRICTION'S

   ADVERSE CONSEQUENCES FOR CANDIDATES AND THE PUBLIC

   1. The Harms That Judicial-Selection Speech Restrictions Seek to Prevent

      1. Actual Partiality

      2. The Appearance of Partiality

      3. The Judiciary Must Be Free to Act as a Check

         on Tyranny by the Majority

      4. Allowing Unfettered Speech by Candidates Misleads

         the Public

   2. Responses to Criticisms of Speech Restrictions

      1. The Voters Have a Right to the Information

      2. The Voters Need the Information

      3. Speech Restrictions Are Unnecessary

      1. Recusal

      2. The Public Can Figure It Out

3. PREVIOUSLY PROPOSED SPEECH RESTRICTIONS

   1. The American Bar Association's Speech Restrictions

      1. The 1924 Canons of Judicial Ethics

      2. The 1972 Code of Judicial Conduct

      3. The 1990 Model Code of Judicial Conduct

      4. The Constitutionality of the ABA Restrictions

         1. Decisions Upholding Canon 7B(1)(c)

         2. Decisions Striking Down Canon 7B(1)(c)

         3. Decisions Upholding the Constitutionality of

         Canon 5A(3)(d)

      5. Analysis of the Case Law

         1. Canon 7B(1)(c)

         2. Canon 5A(3)(d)

   2. Other Proposals

      1. State Restrictions

      2. Proposals by Commentators

4. A CONSTITUTIONAL ALTERNATIVE TO THE ABA'S SPEECH

   RESTRICTIONS

5. APPLICATION TO JUDICIAL APPOINTMENTS

   CONCLUSION

   "We must not regard political consequences, however formidable they

   may be; if rebellion was the certain consequence, we are bound to say

   `Let justice be done, though the sky falls.'"(1)

   INTRODUCTION

   In 1832, swept up in the populist movement known as "Jacksonian Democracy,"(2) Mississippi became the first state to elect all of its judges.(3) In turn, many other states, including every state that joined the Union over the next century, began using elections to select at least some portion of their judiciary.(4) This preference for elected judges can be traced both to the general egalitarian mood prevalent at the time(5) and to a widespread attempt to increase popular control over government by augmenting its accountability to the people.(6) While a discussion regarding the success of this endeavor is best left for another Comment,(7) its legacy remains. Many states currently elect some, if not all, of their judges.(8)

   Unlike elections for executive or legislative positions, however, candidates for judicial office find themselves in the unique position of being required not to take their constituency's views into account when performing their elected duties.(9) Instead, judges are bound to administer the law objectively. They must serve as impartial arbiters beholden only to their duty to dispense justice.(10) This responsibility places elected judges in a particularly delicate position. These judges must curry support in order to be elected; once elected, however, they are required to remain unbiased. While many judges may succeed in carrying out this perverse mandate, in the words of one elected member of the judiciary in the context of an election season, "ignoring the [electoral] consequences of a judicial decision `would be like ignoring a crocodile in your bathtub.'"(11)

   The pressures attendant to judicial decisionmaking are only exacerbated by campaign speech. An illustrative example is a 1981 judicial election where a candidate for judicial office in Kentucky suggested that members of the United Mine Workers Union might receive favorable treatment in his courtroom.(12) Given that this type of behavior attends even regulated judicial elections, to argue that "there is no evidence that free and open campaign debate diminishes judicial impartiality or the appearance of impartiality,"(13) is to ignore reality and the very real potential for abuse that unregulated elections would create. Furthermore, as this Comment will explain, speech restrictions are necessary to protect against more than just explicit promises. Implied promises, such as one candidate's statement that he was a "pro-life candidate,"(14) also severely damage judicial impartiality.

   Recognizing the serious need for restrictions on the conduct of judges and judicial candidates in this and many other areas, the American Bar Association ("ABA") in 1924 formulated the Canons of Judicial Ethics ("1924 Canons"), to serve as a model judicial conduct statute. The ABA designed the Canons "as a proper guide and reminder for judges, and as indicating what the people have a right to expect from them."(15) In 1972, the ABA replaced the 1924 Canons with the Model Code of Judicial Ethics ("1972 Code"). Finally, the 1972 Code was succeeded by the ABA's most recent offering, the 1990 Model Code of Judicial Conduct ("1990 Code"). Most states have closely patterned both their general judicial conduct codes as well as any specific campaign speech restrictions on at least one of these three model provisions.(16) Each of the ABA codes contains some limitation on the speech of judicial candidates, and all, particularly the 1972 Canons, have been the subject of much criticism. This criticism centers around what is deemed an unwarranted intrusion on the First Amendment rights of judicial candidates. In addition, many feel that limiting judicial candidate speech shields the public from vital information needed to make an informed voting decision and only serves to exacerbate the widespread lack of interest in judicial elections. But even assuming the validity of such arguments, there is nevertheless a need for some type of speech restriction in the context of judicial selection. This Comment attempts to formulate a limitation that best addresses the concerns of speech restriction critics while still providing an effective, workable rule.

   In Part I, this Comment will explore the arguments supporting the free speech of judicial candidates. Part II examines the interests that speech restrictions protect and demonstrates why considerations for an impartial judiciary trump, at least to some extent, the free speech issues discussed in Part I. Part III will survey the attempts by the ABA, some states and various commentators to create a meaningful speech restriction, and the problems that accompany each of these proposals. This Part will also demonstrate that the subsequent interpretation of any proposed rule is as important as the rule's text. Part IV proposes a new rule and explains how it must be construed in order to achieve the goal of an impartial judiciary. Finally, Part V will discuss the applicability of the proposed regulation beyond judicial elections to all types of judicial selection.

1. THE CANDIDATES AND THE PUBLIC S INTERESTS IN UNRESTRICTED CAMPAIGN SPEECH

   The difficulty in devising a restriction on the speech of judicial candidates is that any rule attempting to reconcile the competing principles of freedom of speech and impartial legal justice invariably will involve serious tradeoffs. In contrast, developing a rule at either extreme is easy. One could either allow candidates to say whatever they want, or alternatively, prohibit them from saying anything at all that might reveal their opinions regarding an issue. Such solutions, though easily enforceable, completely eradicate the significant concerns of the other side. As Judge Posner has recognized, "[w]hatever their respective pedigrees, only a fanatic would suppose that one of the principles should give way completely to the other."(17) This Part examines the interests advanced by unrestricted campaign speech. Part II, in turn, will discuss the interests on the other side--those protected by speech restrictions--and why those concerns must take precedence over the candidates' and public's interest in having no restriction at all.

   The first and possibly most significant interest of both candidates and the public in unrestricted campaign speech is the flow of information.(18) Candidates have a strong need to convey information about themselves and their campaign platform.(19) Likewise, voters, as well as other types of selectors, require such information if they are to make an informed choice.(20) A lack of information regarding the candidates harms both of these parties, as the selector cannot differentiate among those running for office.

   The consequences of a situation where voters have insufficient information have been well chronicled by opponents of judicial speech restrictions.(21) One ramification is that voters often become apathetic.(22) This results not only from the public's inability to discriminate between the candidates, but also from a general lack of media interest in judicial elections.(23) Many commentators argue that when judicial candidates are not permitted to discuss how they will decide controversial issues (or their general beliefs about such issues), both the electorate and the media lose interest. As a result, not only do voters remain relatively uninformed about judicial candidates, but many lack sufficient interest in the outcome to cast a ballot, even when they are already standing in the voting booth.(24)

   A second consequence of insufficient voter information is that when voters cannot distinguish between candidates on legitimate grounds, they are forced to resort to the information they do have.(25) Such information always includes the candidate's name and often includes sex, race, age and political affiliation. While all but the last of these criteria should be illegitimate identifiers, opponents of speech restrictions argue that voters must rely on them because the public has nothing else.(26)

   In addition to the practical difficulties that accompany an election where candidates may relate only limited information to the public, speech restrictions also implicate the First Amendment.(27) The First and Fourteenth Amendments to the United States Constitution protect a citizen's right to free speech.(28) In Buckley v. Valeo,(29) the Supreme Court further found that "it is of particular importance that candidates have the...