After White: Defending and Amending Canons of Judicial Ethics

A member of the North Carolina Supreme Court served as master of ceremonies for a Republican Party fundraising event in July 2002 and spoke in support of the party’s candidates. Under the canons of judicial ethics in force at the time in North Carolina and most other states, judges were forbidden to engage in partisan political activity of this kind. The following year, the justice admitted that the states Judicial Standards Commission had privately admonished him for breaking the rules. Less than two months later, the same justice and his colleagues amended the states ethical canons to permit judges to attend, preside over, and speak at any political party gathering, meeting or other convocation and engage in other political activity.

What had changed to explain the 180-degree turn? In June 2002, the month before the fundraiser, the United States Supreme Court had decided Republican Party of Minnesota v. White, striking down a Minnesota canon prohibiting candidates for judicial office from announcing their views on disputed issues. Although White said nothing about restrictions on partisan political activity by sitting judges, some judges have relied on White to attack both that ban and a host of other canons. The North Carolina justices, for example, decided to permit judicial candidates to promise voters specific results in particular cases, telling one reporter they “did that to get ahead of a trend in federal court rulings and to avoid lawsuits over the state requirements, although” the reporter noted, White “explicitly avoided the issue.”

Sometimes, as in North Carolina, the attack takes the form of amending the canons; in other cases, specific canons are challenged through litigation. Both forms of attack threaten traditional rules ensuring the independence and impartiality of the courts.

This paper is designed to help defenders of the canons ward off the attacks and preserve the right of all litigants to a fair hearing. The paper is divided into three parts: the first describes the kinds of challenges the canons have been facing in different states; the second discusses tactics and arguments that can be used to defend the canons in litigation; and the third deals with the process of amending canons to preserve both their effectiveness and their constitutionality. There is every reason to expect attacks on the canons to proliferate. If the canons are to survive, their defenders must be prepared.