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Of Judges and “Wannabes”

Should all judicial candidates be treated equally? This question gripped the Ninth Circuit during en banc oral argument earlier this month in Wolfson v. Concannon.

  • Kate Berry
September 28, 2015

Should all judicial candidates be treated equally? This question gripped the Ninth Circuit during en banc oral argument earlier this month in Wolfson v. Concannon.* Plaintiff Randolph Wolfson is an Arizona lawyer who ran unsuccessfully for judicial office in both 2006 and 2008. Wolfson’s suit alleges that the ethical rules governing his campaign, found in the Arizona Code of Judicial Conduct, place unconstitutional restrictions on speech. The trial court upheld all of the challenged rules, finding in favor of Defendant the Arizona Commission on Judicial Conduct, but a three-judge panel of the Ninth Circuit reversed. Defendant successfully sought rehearing en banc, which took place after a stay pending the Supreme Court’s resolution of Williams-Yulee v. The Florida Bar last spring. In Williams-Yulee, the Court upheld Florida’s ethical rule prohibiting judicial candidates from personally soliciting campaign contributions.

Wolfson involves a challenge to Arizona’s personal solicitation rule, which is nearly identical to Florida’s and almost certainly constitutional under Williams-Yulee, as well as a number of rules limiting the political activities of judicial candidates. These restrictions include prohibitions on endorsing or opposing political candidates publicly, making speeches on behalf of political organizations or candidates for public office, and soliciting funds for other candidates or political organizations.

In determining the constitutionality of these provisions, the vacated opinion of the three-judge panel drew a distinction between two groups of judicial candidates: (1) sitting judges seeking an additional judicial term; and (2) non-judges seeking a judicial term. In its decision, the panel determined that the rules were unconstitutional as applied to the latter category but suggested they may be constitutional as applied to the former – potentially creating different sets of rules for candidates running for the same position. While that decision has been vacated, several members of the en banc court clearly remain concerned about whether, as a matter of law, these two groups of candidates should indeed be distinguished. 

The simple answer is no. In considering the constitutionality of judicial ethical rules, courts have consistently treated all judicial candidates identically, and for good reason. Their behavior as candidates implicates the same compelling interest in judicial integrity. An impartial judiciary protects the due process rights of litigants as well as public confidence in the decisions they issue. It also ensures that the judiciary is a valid check on executive and legislative authority, thus preserving separation of powers. By deciding to run for judicial office, non-incumbent candidates are asking the public to give them the responsibilities of judicial office. Once elected, the campaign behavior of both non-incumbent and incumbent candidates reflects on them as judges, and on the judiciary as a whole.

Those who personally solicit campaign contributions are equally likely to be, or appear to be, beholden to their benefactors. In Williams-Yulee, the Court was clear that when a judge comes to office by personally asking for favors, the public may lack confidence that she will administer justice impartially. This is true for candidates who are not judges, like the plaintiff in Williams-Yulee, as well as those who are sitting judges during their campaign.

Similarly, a judicial candidate who endorses a non-judicial office-seeker, such as a prosecutor, a sheriff, or a senator, will be linked to that individual whether she was a non-incumbent or an incumbent during her judicial candidacy. In either case, the endorsement creates the specter that this political relationship will impact the judge’s rulings. Additionally, if judges are permitted to endorse political candidates, there will be pressure for them to do so. Judicial integrity could suffer if judges are acting as, or perceived to be, political power brokers.

The Ninth Circuit should follow the precedent set by every federal appellate court to consider the constitutionality of a judicial ethical rule and treat all judicial candidates identically. Judicial integrity is threatened by not just the candidates campaigning from the bench, but also, as Ninth Circuit Judge Consuelo Callahan dubbed them, “the wannabes.”

* The Brennan Center with ally groups submitted an amicus brief in Wolfson urging the court to rehear the case en banc and then, once en banc was granted, in support of Defendants-Appellees. The Brennan Center also filed an amicus brief in support of Appellee in Williams-Yulee.