Eroding the public's confidence in judicial impartiality: first amendment federal jurisprudence and special interest financing of judicial campaigns.

• Author: De Muniz, Paul J.
• Position: Perspectives: Judicial Elections Versus Merit Selection

The tension between the popular election of judges and the performance of the judiciary's core functions--impartiality and dedication to the enforcement of the rule of law regardless of the perceived popular will--has long been the subject of serious debate among scholars of various disciplines. (1) Nevertheless, judges continue to be selected by popular vote in the majority of states. (2) In fact, despite efforts in a number of states to change the method of judicial selection to some form of appointive/merit system, no effort has been successful in the last twenty years. (3) That is so even though voters admit that they often know little about the judicial candidates for whom they are voting. (4)

In recent years, the debate has been centered around the threat to judicial impartiality arising from the out-of-control special interest financing of judicial elections. For example, in 2000, special interest groups--excluding political parties--spent $16,000,000 on judicial races in only five states. (5) These spiraling judicial election campaign expenditures by special interest groups, combined with the pernicious rhetoric directed at courts and individual judges by many of those groups, are perceived by numerous commentators as threatening to eventually erode the public's confidence in the impartiality of the judicial branch.

In an attempt to preserve some measure of integrity in state judicial elections, the National Center for State Courts has made a number of recommendations aimed at negating any advantage a judicial candidate might gain through demagogic campaign tactics and rhetoric. Some of the pertinent recommendations include:

Educational programs on state elections laws, judicial canons, and sanctions for [judicial conduct] code violations.. .. "Hotlines" ... established by the Legislature, the Judiciary, or the appropriate judicial discipline body to respond expeditiously to questions about campaign conduct, campaign finance, judicial ethics, or related issues .. . [and] [n]on-governmental monitoring groups.. . established to encourage fair and ethical judicial campaigns. (6) The recommendations appear to have been premised on the assumed validity of the state judicial conduct codes that regulate, in varying degrees, judicial campaign speech. However, any ameliorating effect those recommendations might have on the current judicial election environment is likely to be negligible in light of Republican Party v. White, (7) a decision that appears to forecast the constitutional demise of most state judicial campaign speech regulations.

This essay briefly examines the White case to make two observations about the future of judicial elections. The first is that although the "announce" provision was contained in the judicial codes of only eight states when White was decided, the reasons underlying the Supreme Court's rejection of Minnesota's asserted interest in regulating judicial campaign speech will likely promote future successful challenges to other state judicial election speech restrictions. The second point flows from the first: To the extent that...