Image is everything: politics, umpiring, and the judicial myth.

• Author: Dimino, Michael R.

INTRODUCTION

1. Appearances and Reality Behind the Bench and Behind Home Plate

   In his 2005 confirmation hearings, Chief Justice John Roberts famously compared judging to umpiring baseball: "Judges are like umpires. Umpires don't make the rules; they apply them." (1) Under Roberts's view, both law and the rules of Major League Baseball (MLB) are objective, existing apart from the actions and desires of those who enforce them. Neither judges nor umpires are supposed to "make the rules" under the guise of interpreting them. (2)

   Further, under the vision of judging and umpiring invoked by the Chief Justice, the application of the rules is objective. In arguing that a judge's "job [is] to call balls and strikes and not to pitch or bat," (3) Roberts suggested that the decisions made by both umpires and judges could be evaluated as objectively right or wrong. Either the pitch is in the strike zone (which is itself defined by the Rule Book) or it is not. (4) Either the judge correctly interprets the statute or he does not. Decisions are not supposed to depend on which team or litigant the umpire or judge wants to prevail. And they are not supposed to depend on whether the umpire or judge agrees with the rule or the law.

   Roberts's statement has been criticized for inaccurately (or at least incompletely) describing the jobs of both judges and umpires, (5) but his point was memorable and easy to understand. More important than the accuracy of the analogy, however, was the impression Roberts was trying to create--both about his judicial philosophy and about the judiciary itself. That is, it was less important for Roberts that judges act like (idealized) umpires than that judges be thought to act like them. Roberts was, after all, trying to secure Senate confirmation of his nomination to the Supreme Court. He wanted to assuage fears that he would manipulate the law to serve his favored policy ends, so he claimed to have "no agenda" and promised only to "call balls and strikes," leaving the pitching and batting to the others--presumably Congress, the President, and the states. (6)

   The fact that judges, in reality, "make" the law by construing open-ended provisions of the Constitution and by interpreting statutes was beside the point. Neither, for that matter, was it significant for Roberts that umpires, too, have considerable discretion in calling balls and strikes, to say nothing of rules such as obstruction, interference, balks, and the infield-fly rule that even more obviously ask umpires to use their judgment. The important consideration was that judges (and umpires) who are believed to be doing no more than applying the law would escape some of the controversy and criticism that they might receive if the full scope of their discretion were realized.

2. Appearances and Reality in Judicial Campaigning

   This division between the reality and the appearance of judging is at the heart of Williams-Yulee v. Florida Bar, a 2015 case in which the Court, in an opinion by Chief Justice Roberts, upheld a prohibition on the personal solicitation of funds by judicial candidates. (7) In reaching that decision, the Court limited a prior case, Republican Party of Minnesota v. White, which, in an opinion by Justice Scalia, struck down a prohibition on judicial candidates' announcement of their views on disputed legal or political issues. (8) A comparison of the two opinions shows two radically different approaches to the nature of judging and judicial politics. White adopts a realistic conception of judging, viewing judges as human beings who make policy. Its central assumption is that the voters in judicial elections should be able to base their votes on differences between judicial candidates that affect the way those candidates are likely to decide cases. Williams-Yulee operates from a different premise. In Williams-Yulee, it is not reality but appearance that is paramount. The Court downplays the policy-making role of judges and accepts that states have a compelling interest in encouraging the public to believe in an idealized image of the judiciary because that is the image most likely to preserve "public confidence" in--and thus public willingness to follow--the courts.

   In this Article, I examine the different approaches that the Court took in White and Williams-Yulee, contrasting White's focus on reality with Williams-Yulee's focus on appearances. That difference manifests itself in a variety of ways in the opinions, from the political judgment about the value of public involvement in judicial selection to the doctrinal judgment about the application of strict scrutiny and the permissibility of government regulation of campaign speech. The cases diverge as well on the importance of promoting an image of neutral judging, the importance of public participation in judicial selection, and the importance of ensuring that speech limitations are no broader than necessary. In the pages that follow, I address each of these differences.

   1. BACKGROUND AND CONTEXT

      In 2009, Lanell Williams-Yulee ran for county judge in Florida. She wrote and signed a letter announcing her candidacy and requesting campaign contributions. She then mailed the letter to supporters and posted it on her campaign's website. (9) The Florida Bar then disciplined her for violating Florida's Code of Judicial Conduct, (10) which prohibited candidates from "personally soliciting] campaign funds." (11)

      The Code of Judicial Conduct allowed for an alternative method of fund-raising, however. Although Canon 7(C)(1) of the Code prohibited the personal solicitation of contributions by candidates, it permitted the solicitations to be carried out by committees acting on the candidates' behalf:

      A candidate ... may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. (12) Under Florida law, these committees were anything but independent of the candidate. As the Supreme Court acknowledged, the state "allow[ed] a judicial candidate to serve as the treasurer of his own campaign committee, learn the identity of campaign contributors, and send thank you notes to donors." (13) Thus, the ban on personal solicitation did very little or nothing to prevent favoritism. Candidates knew who was giving money to their campaigns, and contributors could respond to committees' solicitations knowing that the candidates would be thankful for their support. Potential contributors could also fear that their failure to offer support could lead to retaliation.

      Why, then, did Florida bother to prohibit the personal solicitation of campaign funds by candidates? In a word: image. Florida simply thought that it looked bad for judges to be asking for money. The campaign committees were able to do the necessary fundraising, but because of their lower profile and because few people understood the extent of involvement by the candidates themselves, the committees' fund-raising was believed to do less to tarnish the above-the-fray image of the judiciary.

      The question before the Supreme Court, then, was whether Williams-Yulee's personal involvement in her campaign solicitation--undoubtedly activity protected by the First Amendment--could be limited because Florida thought that it undermined the State's preferred image of the judiciary. The Supreme Court held that it could. The decision is disappointing, as it allows the government to limit the electoral speech of candidates seeking support from constituents in order to influence the public to have a more positive--and unrealistic--image of part of the government.

      The ban on personal fundraising is likely to be little more than a trivial burden for most judicial candidates. In fact, it might be a relief for some candidates who are happy to leave the personal fundraising appeals to others. And, as noted, there are plenty of alternative fundraising methods available to candidates. Consequently, the immediate impact of Williams-Yulee may not be terribly harmful for the candidates, the voters, or the institution of an elected judiciary. But the principle that speech can be limited to prop up an idealistic and unrealistic image of government is a dangerous one. For elections and electoral speech to fulfill their democratic promise and serve as a check on the government, they must be free of control by the government. And while we accept that some limits on electoral speech are necessary to serve compelling ends, such as protecting access to the polls, (14) the government should not be able to...