Freeing Candidate Speech in Judicial Elections: Or How Safe Are Loose Canons?

There seems to be a paradox in the idea of electing judges. As in any election, voters need information that will allow them to assess how each of the candidates is likely to perform in office. Candidates for legislative or executive office typically provide this information in the form of campaign promises, commitments about what they will do if they win the election. But voters also want courts that are fair and impartial, and judges cannot be unbiased if they have previously made commitments about how they would rule if elected to the bench.

To protect our constitutional rights, we therefore have rules that limit what judicial candidates can say in a campaign. Hence the apparent paradox: we want meaningful information from judicial candidates and, at the same time, we don’t want them telling us anything that would impair their impartiality as judges.