Tripping the Rift: Navigating Judicial Speech Fault Lines in the Post-white Landscape - Barbara E. Reed

• Citation: Vol. 56 No. 3
• Publication year: 2005

Tripping the Rift: Navigating Judicial Speech Fault Lines in the Post-White Landscapeby Barbara E. Reed^*

This Article is presented in large part as a synthesis of existing jurisprudence, conventional public policy wisdom, and new approaches to navigating the post-White landscape, including recommendations derived from years of collaboration with judges, lawyers, scholars,policy specialists, and other stakeholders. To a greater or lesser degree, much of what is contained herein is thus subjective and should be approached with that in mind. The views herein, and any errors, are mine alone.

I. Introduction

Two and a half years after the United States Supreme Court's decision in Republican Party of Minnesota v. White,' the status of the conduct rules governing the third branch remains unstable. It is tempting to regard the White decision as a catastrophe of constitutional propor-tions-as, indeed, a large percentage of scholars, advocates, and members of the bench do.

In truth, however, White is better regarded as a relatively small seismic event: one that, despite the force of the initial quake, has now subsided into a constitutional and ethical fault line. The jurisprudence of judicial speech and conduct (especially,although not exclusively, with regard to judicial elections) may now reasonably be divided into categories on either side of the White fault: (1) what may be described as the "say nothing"tradition; and (2) what may be termed the new "say anything" practice. Judges and judicial candidates today straddle this line under tremendous pressure from both sides, each of which risks hardening into an all-or-nothing approach that jeopardizes the judiciary's independence and ability to perform its constitutional functions.

However, there is another post-White path: A combination of narrow tailoring, a commitment by the bench and bar to the highest aspirational standards, and an assertive campaign of public education, can create a jurisprudence that is sufficiently flexible to expand and contract as required by individual circumstances and constitutional requirements. Such a jurisprudence will prevent what is now a manageable rift from rupturing into an unbreachable chasm.

Under this analysis, White may be regarded not as a catastrophe, but rather as an opportunity, and this Article makes the case for such an approach. Part I outlines early judicial-speech jurisprudence and traces the path of these early tremors to White. Part II dissects White itself, clarifying precisely what the decision holds, and debunking the toxic mythology that has grown up around it. Part III covers post-White developments and lays the groundwork for Part IV, which uses judicial candidate questionnaires as a vehicle to demonstrate how White's impact may be transformed into an educational opportunity: how, contrary to popular belief, changes in judicial speech standards may be used not to undermine judicial independence, but rather to build a stronger, more independent judiciary. Such an approach will not be easy, but it will be necessary to preserve ajudiciary that is authoritative, autonomous, and accountable in a manner envisioned by our constitutional tradition.

II. PART I: EARLY TREMORS

The American Bar AssociationC'ABA") first promulgated its contemporary Model Code of Judicial Conduct' ("Model Code")in 1972. As with the ABA's other "model"rules and codes, this Model Code was designed as a template that statejudiciaries could adapt to create their own rules governing judicial speech and conduct, both on and off the bench.

This initial version of the Model Code included the now-infamous "announce clause" of what was then Canon 7,³ under which judges and judicial candidates were not permitted to "announce their views on disputed legal or political issues."⁴ Although well-intentioned, the "announce clause" paved the road to today's First Amendment hell in the context of judicial elections. The clause was originally intended to prevent either an actual or an apparent quid pro quo of votes for decisional outcomes. A subsidiary goal was to provide elected judges with a prophylactic against such improper pressures to issue particular decisions.

However, it eventually became apparent that the "announce clause" suffered from those dreaded dual constitutional infirmities of over-breadth and vagueness: The phrase "disputed legal or political issues" was overly broad because it had the potential to ensnare remarks by judges and judicial candidates on topics that could not possibly come before them on the bench.⁵ The same flaws responsible for the canon's overbreadth likewise rendered it vague, appearing to encompass everything generally but nothing specifically. Thus, in 1990, the ABA revised the Model Code, scrapping Canon 7's "announce clause" in favor of relying upon the speech restrictions of Canon 5,⁶ including the so-called "commit clause" and "pledges or promises clause."' Certainly, from 1990 until 2001, no one seriously entertained the idea that a ban on such pledges, promises, or "commitments" would run afoul of the Constitution. During this period, major challenges mounted to such restrictions onjudicial speech and conduct were few and far between—so few, in fact, that in practical terms, the most significant case law amounts to three decisions, one from the Michigan Supreme Court and two from the federal courts: Buckley u. Illinois Judicial Inquiry Board? In re Chmura,⁹ and Butler u. Alabama Judicial Inquiry Commission. "

A. Buckley u. Illinois Judicial Inquiry Board

Buckley v. Illinois Judicial Inquiry Board," a 1993 Seventh Circuit decision, turned on facts that now seem quaint by comparison with White and its progeny. Incumbent appellate courtjudge Robert Buckley, eligible for retention, simultaneously ran for a slot on the Illinois Supreme Court." During the course of his campaign, he distributed literature that included the statement that, as an appellate courtjustice, he had "never written an opinion reversing a rape conviction."¹³ Buckley subsequently faced charges before the statejudicial disciplinary body, the Illinois Courts Commission ("ICC"), for violating the "announce clause" of the Illinois Code of Judicial Conduct.¹⁴ The ICC found a violation, but declined to impose any sanction. In the meantime, Buckley lost the race for Illinois Supreme Court, but won retention to his position on the appellate court.¹⁵

Buckley filed suit in federal district court, and his case was consolidated with that of Anthony Young, a lawyer and former state legislator who had just won a circuit court race.¹⁶ Young's suit alleged that the "announce clause" had prevented him from discussing issues that were

"important" to Illinois voters in choosing their circuit court judges, including abortion, capital punishment, public education issues, and the state's budget.¹⁷ There was a material difference in the two cases, however: As an incumbent judge, Buckley was subject to the sole jurisdiction and discretion of the ICC, from whose decision there was no appeal. Young, on the other hand, was not yet ajudge when he ran for circuit court; had he violated the "announce clause," he would have been disciplined under the Illinois Code of Professional Responsibility'' for lawyers, and would thus have had a right of appeal to the Illinois Supreme Court.¹⁹

Buckley sought only to challenge the constitutionality of the ICC's decision, rather than a ruling on the merits of his campaign statement. The district court thus construed the "announce clause" narrowly: as applicable only to issues that were likely to come before the judge in question." on that basis, the district court dismissed the suit, and Buckley appealed to the Seventh Circuit."

Writing for the Seventh Circuit, Judge Richard Posner acknowledged that "judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."²² However, Posner nonetheless found the rule unconstitutional on grounds that both its "announce clause" and its "pledges or promises clause" were overinclusive ²³ The "announce clause" could not reasonably be construed to apply only to cases or controversies likely to come before the court,²⁴ and the "pledges or promises clause" extended to pledges and promises for all purposes, not merely to reach particular decisions.²⁵

B. In re Chmuru

In re Chmura²⁶ was a 2001 case from Michigan, stemming from a 1996judicial election in Macomb County, a Detroit suburb. Almost as little-noticed as Buckley at the time, Chmuru nevertheless eerily foreshadowed White and its progeny. Although the "announce clause" remained on the books in some states, Michigan was not among them.

Chmura engaged in highly negative campaign advertising, mounting vicious, misleading, and otherwise inappropriate attacks upon his opponent, the incumbent trial judge.²⁷ Among his campaign advertising was a television commercial that included the following on-screen text: "Murder . . . Rape . . . Dismemberment . . . Innocent Victims . . . Could Jim Conrad's Court have stopped it?"²⁸ The ad also accused Conrad of having sentenced the defendant in the case at issue to "only a slap on the

Not content with running ads attacking his opponent, Chmura also mounted a tangential attack on Coleman Young, then the highly controversial mayor of Detroit, in a blatant attempt to boost his candidacy through an appeal to the baser reactions of the electorate.³⁰ Macomb County is a largely white, reliably conservative district, and one of the counties whose population exploded during the years of "white flight" from the city of Detroit.³¹ At the time of the 1990 census, Macomb County's demographics were 97% white, l%African-American, l%Asian-American, and l%a combination of all other ethnic categories.³² Fairly or unfairly, the county's reputation in the state was one that was regarded as unwelcoming, to say the...