Regulating judges' political activity after White.

• Author: Weiser, Wendy R.
• Position: Issues Facing the Judiciary

INTRODUCTION

In Republican Party of Minnesota v. White, (1) the Supreme Court struck down, on First Amendment grounds, a canon of Minnesota's Code of Judicial Conduct prohibiting candidates for judicial office from announcing their views on disputed issues. In doing so, it called into question the constitutionality of many of the rules that govern campaigns for judicial office in the thirty-nine states that elect at least some of their judges. These rules, modeled after Canon 5 of the American Bar Association's ("ABA") Model Code of Judicial Conduct, (2) and adopted in some form in virtually every state, have long served as one of the primary means by which states seek to ensure the distinct characters and constitutional roles of their judicial branches.

Since White, state regulatory systems designed to promote the independence and impartiality of their judiciaries have been thrown into disarray. By articulating a robust conception of First Amendment protections in the context of judicial elections, the White decision has left the canons--many of which touch on matters within the scope of the First Amendment--susceptible to attack. For example, canons prohibiting judges and judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" (3) and "mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" (4) restrict what individuals can say while seeking or holding judicial office and thus implicate constitutional guarantees of free speech. Canons prohibiting judicial candidates from personally soliciting campaign contributions, (5) as well as other state contribution limits and regulations, implicate the speech and association protections recognized in the Court's campaign finance decisions. (6) And canons limiting judges' partisan political activities (7) interfere with the right to associate and to engage in political speech. Because White now stands as the seminal case on the First Amendment rights of judicial candidates, challenges to any of these canons must contend with it.

If White is read as saying that judicial elections must be conducted under the same First Amendment conditions as other elections, then most of these canons will fall. Similar restrictions are simply not constitutionally permissible in elections for political office. But White explicitly disavowed any implication that by having judicial elections a state must accept the full panoply of constitutional doctrine applicable to other elections. After analyzing the challenged canon under its precedents for non-judicial election speech, the Court somewhat cryptically announced, "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office." (8)

The problem is that the Court did not provide sufficient guidance for determining when judicial elections must and when they need not sound like those for non-judicial office. The reason for this failing is that the Court did not fully address the interests the state sought to promote through its canons. As one state court judge pointed out, it is curious that, in evaluating the constitutionality of state efforts to enforce "ethical conduct appropriate to the judiciary's assigned role in a democracy," (9) the Court did not even attempt to define that role, let alone consider how the state defined that role. This oversight is troubling given that the judicial role and the states' interests in defining and protecting that role are matters that generally carry significant constitutional weight. Whether the White result is correct, its reasoning, which fails to lay out a framework balancing the constitutional values served by the canons with those of free speech in the special context of judicial elections, is unsatisfying.

This failure exacts a considerable cost. Since White, litigation challenging the canons has proliferated. (10) State legislatures and the ABA have begun to undertake substantial revisions to their canons. But neither the courts nor the legislatures have had adequate direction from the Supreme Court for these considerable tasks. (11) This is especially true with respect to canons regulating the political activities of judges and judicial candidates, which cannot be easily analogized to the canon challenged in White. What is more, those defending the canons have been hampered by a legal framework-pulled from a different context--that does not seriously take into account their concerns. The result has been inconsistent outcomes, disagreement about the legal standards applicable to judicial conduct regulations, widespread uncertainty about the future of the canons, and a general weakening of state efforts to regulate judicial conduct.

Perhaps not coincidentally, this confusion has come at a time when judicial elections are being conducted more and more like elections for political office. Some of the disturbing trends documented in recent years include a staggering escalation of the amount of money used to support judicial campaigns, (12) a growth in the participation of political parties and other interest groups in judicial campaigns, (13) increases in the amount of television advertising, (14) a deterioration of the tone of campaigns, (15) and a general decline in the public's confidence in the judiciary. (16) The increasing politicization of the judiciary has made state efforts to preserve an independent judicial role all the more urgent. But without a sufficient legal framework for reconciling the judicial role with the fact of judicial elections, regulations of judicial conduct designed to enhance judicial independence are bound to remain contested.

This article will attempt to fill in some of what was missing from the White decision. Its goal is to establish a framework for addressing a category of judicial conduct regulations that the Court did not consider: canons restricting the political activities of judges and judicial candidates. Those canons have been the targets of several recent court challenges, and there is every reason to believe that additional challenges will follow. Although the political activity canons do not resemble the canon struck down in White, the White decision nonetheless stands as the main obstacle to their continued validity. The article therefore begins, in Part I, with a description of the Court's decision in White. Part II argues that White did not fully address the state interests underlying the canons, leaving a doctrinal framework that is insufficient to address the remaining canons.

Part III elaborates on a fundamental state interest served by the canons that the White Court did not address--the interest in judicial independence within a government of separated powers. This interest does not center on the due process rights of litigants, but rather on the ability of the judiciary to serve as an effective check on the political branches, to promote the rule of law, and to protect minority rights. Part III argues that the adoption of popular elections as a means of selecting state court judges does not reflect a diminished commitment to judicial independence; rather, the constitutions of states that elect their judges seek to protect judicial independence by other means. It also elaborates on the essential features of judicial independence common to the federal system and the systems of those states with elective judiciaries. Those features include separation from the political branches, insulation from partisan politics, and mechanisms to ensure that judicial decisionmaking is based on different considerations than political decisionmaking. Part IV considers the canons regulating judges' political activities in light of the state interest in judicial independence. It argues that those canons are an integral part of how states with elected judges ensure that their judicial branches can properly serve their constitutional roles. As a result, the article concludes, in Part V, that the political activity canons are worthy of particular respect under Supreme Court doctrine. At the very least, they should be recognized as serving compelling state interests.

1. THE WHITE DECISION

   In 1998, Gregory Wersal, a lawyer aspiring to a position on the Minnesota Supreme Court, joined with the Republican Party of Minnesota and others to challenge a number of restrictions Minnesota places on candidates for judicial office, (17) Mr. Wersal sought to be free from regulations that prohibited him, during the course of his campaign, from publicly identifying himself as a member of a political party, (18) speaking at party gatherings, (19) seeking the party's endorsement for his campaign, (20) stating positions on controversial issues, (21) and personally soliciting campaign contributions and support, (22) among other things. The restrictions he contested formed the bulk of Canon 5 of Minnesota's Code of Judicial Conduct, the only canon concerning campaigns for judicial office. As a result, the case went to the heart of the state's power to regulate the conduct of candidates in judicial elections.

   Although the certiorari petition raised a number of the challenged provisions, the Supreme Court chose to address only the "announce clause," the provision forbidding a judicial candidate from "announc[ing] his or her views on disputed legal or political issues." (23) In a five-to-four decision authored by Justice Scalia, the Court held that the announce clause violates the First Amendment.

   The Court reached this result through a straightforward application of First Amendment doctrine. Because Minnesota's rule both regulated speech based on its content and concerned speech "about the qualifications of candidates for public office," the Court applied strict scrutiny. (24) Although states may choose...