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Top Legal Organizations Express Concern About Impact of Supreme Court's White Decision on Fair and Impartial Courts

For Immediate Release
June 27, 2002

Contacts Information:
Amanda Cooper
Bert Brandenburg, Justice at Stake, 202 588-9436

Top Legal Organizations Express Concern About Impact of Supreme Court’s White Decision on Fair and Impartial Courts
New Measures Announced to Help States Revamp Ethics Codes in Time for Fall Elections

Some of America’s most prominent legal organizations expressed concern about today’s Supreme Court decision in the case of Republican Party of Minnesota v. White. The decision could change the rules for candidate speech in judicial elections in many states this fall. The organizations, all members of the Justice at Stake Campaigna national partnership to keep courts fair and impartialalso unveiled measures to help states as they weigh the impact of the decision on their judicial campaign codes and whether to redraft them.

By a 5-4 vote, the Court found that Minnesota’s canon prohibiting judicial candidates from announcing their views on disputed legal and political issues violates the First Amendment. (Note: Until recently, the case was captioned Republican Party of Minnesota vs. Kelly. The caption was changed to White when Suzanne White replaced Vera Kelly as Chairperson of the Minnesota Board of Judicial Standards, which is the respondent in the case.)

Reactions From Justice at Stake Partners

  • “Today’s decision begins a new era for state court elections,” said Geri Palast, Executive Director of the Justice at Stake Campaign. “More candidates will be pressured to resort to politics as usual to become judges.”
  • “This is a bad decision,” said American Bar Association President Robert E. Hirshon. “It will open a Pandora’s box. We will now have judicial candidates running for office by announcing their positions on particular issues, knowing that voters will evaluate their performance in office on how closely their rulings comport with those positions. It is not the type of justice system the American people want.”
  • “Regardless of how the balance is struck in a particular Supreme Court case, or with respect to a specific judicial canon, it is critical to preserve a fair, impartial and independent judiciary,” said Roger Warren, President of the National Center for State Courts.
  • “Today’s decision lowers the standards for judicial campaign conduct at exactly the wrong time,” said Deborah Goldberg, Deputy Director of the Brennan Center for Justice. “Skyrocketing campaign costs are pressuring candidates to compromise their fairness and impartiality by staking out positions calculated to attract wealthy contributors. Now more than ever, we need campaign finance laws that reduce the influence of monied interests on elections for the bench.”
‘ As a result of today’s decision, voluntary standards of conduct for judicial candidates are more important than ever,” said Barbara E. Reed, Counsel and Policy Director of the Constitution Project’s Courts Initiative. “Judicial candidates need such a resource if they are to remain independent of the political and financial pressures of campaigns, and thus be able to decide cases free of any influence but the rule of law.”

(The ABA filed an amicus brief in support of Minnesota, as did the Brennan Center and 8 other Justice at Stake partners. The Conference of Chief Justices, for which the NCSC provides organizational support, also filed an amicus brief supporting Minnesota. Some of these briefs can be found at http://www.justiceatstake.org.)

New Measures to Help Keep Courts Fair and Impartial

The organizations also announced a package of measures to help states and judicial candidates deal with the impact of the White decision, even as many of them prepare for judicial elections this fall. Justice at Stake partners will be working together to implement these measures.

American Bar Association

  • The ABA is reviewing its Model Code of Judicial Conducton which almost all state codes are basedto ensure it meets the dynamics of modern judicial campaigns and the parameters of today’s court decision.
  • At its annual meeting this August, the ABA will also assemble a panel of ethics experts, academics, attorneys, and judges to consider the impact of the ruling on the ABA Model Code and state codes.
National Center for State Courts

The National Center will offer assistance to state chief justices, working in conjunction with other Justice at Stake partners, to:

  • Secure from all judicial candidates voluntary pledges, based in part on the Constitution Project’s Higher Ground Standards, to comply with their state’s Canon of Judicial Conduct.
  • Establish judicial campaign conduct committees, official and unofficial, that can moderate the tone of judicial elections and inform the public.
  • Appoint a network of campaign watchers to document conduct during the 2002 judicial elections and gather valuable lessons for subsequent election cycles.
  • Make available, to states and localities, information and experienced judgment on litigation over judicial campaign conduct.
Brennan Center for Justice
  • The Brennan Center released a proposal for judicial candidate debates that would be consistent with today’s decision without jeopardizing the impartiality of potential judges. (On the web at http://www.brennancenter.org)
  • The Center will help draft state campaign finance laws that reduce the influence of money on judicial elections.
  • The Center will track and analyze campaign advertising in state Supreme Court elections this fall to help assess the impact of today’s decision and make the case for needed reforms.
Constitution Project

‘ The Constitution Project is working with the League of Women Voters to expand the use of the Constitution Project’s Higher Ground Standards of Conduct for Judicial Candidates, which provide a set of voluntary standards against which all campaign conduct can be judged. (On the web at http://www.constitutionproject.org/ci/index.html and http://www.lwv.org/join/society.html)

BACKGROUND

87% of all state judges face elections, and in 38 states Supreme Court candidates must stand for election. (In 18 of these 38 statesincluding Minnesotahigh court seats are filled through contested elections between competing candidates. In 16 others, justices are initially appointed, then face uncontested “retention elections” at the end of their terms, where they must win at least a majority of “yes” votes to stay in office. Four other states use a mix of both systems.)

This fall could mark a watershed for judicial elections in the United States, as 33 states elect justices to their highest courts. Today’s decision comes amid a growing threat to fair and impartial courts:

  • Special interests are spending millions to influence decisions and elect judges to serve their narrow interests, not the public interest.
  • The cost of judicial campaigns is skyrocketing, forcing judges to raise money like politiciansand people believe that justice is for sale. (State Supreme Court candidates raised 2445.6 million during the 2000 campaigna 61 percent increase over 1998 and double the amount raised in 1994)
  • Misleading and partisan attacks on judges’ decisions are bringing politics into the courtroom.
  • Americans say they don’t have enough information to protect the courts that make important decisions about their lives.
Americans and their judges are growing increasingly concerned. According to recent polling commissioned by Justice at Stake, 76 percent of voters now believe that donors to judges’ campaigns get special treatment in court. And 8 in 10 state judges and 9 out of 10 voters are concerned that special interests are trying to use the courts to shape public policy to their own ends.

Justice at Stake is a nonpartisan national campaign of 34 partners working to keep our courts fair and impartial. Justice at Stake Campaign partners educate the public and work for reforms to keep politics and special interests out of the courtroomso judges can do their job protecting our Constitution, our rights and the rule of law. The positions and policies of Justice at Stake campaign partners are their own, and do not necessarily reflect those of other campaign partners.

(NOTE TO REPORTERS: As mentioned above, until recently this case was captioned Republican Party of Minnesota vs. Kelly. The caption was changed when Suzanne White replaced Vera Kelly as Chairperson of the Minnesota Board of Judicial Standards, the respondent in the case.)

FOR FURTHER INFORMATION

Justice at Stake is on the internet at http://www.JusticeAtStake.org. The partners cited here today can be reached at: