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Judicial Candidates and Free Speech

Published: October 2, 2004

Judicial Candidates and Free Speech

October 2000

Judicial Candidates and Free Speech

Judicial elections are odd affairs. As in any election, candidates for judicial office seek to attract votes by trumpeting their past accomplishments and favorably contrasting their fitness for office as against that of their electoral opponents. On the other hand, because of the nature of the office they are seeking, judicial candidates are expected to behave in a much more restrained manner than ordinary candidates.

The essential quality of a judge is impartiality. Judges are bound to the greatest extent possible to approach each case that comes before them with no predisposition as to the correct legal result. They are also expected to try to reach this result without regard to the identity of the parties to the case. What is more, judges have a duty not only to be impartial in adjudication itself, but to display impartiality in courtroom demeanor and in their public conduct generally.

Campaign conduct is subject to particular scrutiny. A candidate for judicial office can offend against the imperative of impartiality in a number of ways. Judicial candidates should of course refrain from announcing how they intend to decide a particular class of cases. And certainly they should avoid excoriating any class of persons or entities that may come before the bench, whether it be criminal defendants, trial lawyers or industrial polluters. Finally, a judicial candidate is expected to be particularly circumspect with respect to what has come to be called “negative campaigning.” Making fierce attacks upon the character or record of one’s opponent is manifestly demonstrative of a lack of proper judicial temperament.

In order to ensure that judicial campaigns are conducted in accordance with these strictures, virtually all states that select judges by election also have rules of judicial ethics—either codified in statute or promulgated by the highest court of the state—that regulate the campaign speech of judicial candidates. Generally speaking, these ethical codes forbid judicial candidates from discussing particular cases that may come before them and also disallow false or deceptive campaign statements.

These ethical codes, however, have come under attack of late. Indeed, in response to First Amendment challenges, the Supreme Court of Michigan and federal district courts in Georgia and Alabama have in the last six months partially struck down the ethical rules pertaining to judicial campaigns in those states.

All of these cases were correctly decided. Each of the codes at issue was badly drafted and gave too little protection to candidate speech. The Alabama code, for example, forbade judicial candidates from distributing “true information” about an opponent “that would be deceiving or misleading to a reasonable person.” First Amendment jurisprudence, however, frowns upon the notion that political speech must be made understandable to some fictional “reasonable person” and that, failing this, the speaker may be penalized. The Michigan and Georgia codes provided that false statements could be penalized not only when they were made with the knowledge that they were false, but also when a judicial candidate “reasonably should [have] know[n]” that the statements were false. A candidate could therefore be punished for mere negligent misstatements that were made with no intent to decieve. Thus, the Alabama and Georgia courts, and the Michigan Supreme Court, were surely correct to scale back these ethical codes to allow only for the penalization of false statements made knowingly.

But none of these three decisions went so far as to hold that the First Amendment requires that judicial elections be opened up to the full range of low-ball tactics that frequently characterize contemporary campaigns for legislative or executive office. On the contrary, the Michigan Supreme Court stated explicitly that ”y providing for the election of judges, the people of Michigan have not transformed judges into legislators or executives.” All three courts declared that a state has a compelling interest in preserving the integrity of its judiciary, which, as we have said, is in large part a matter of preserving the judiciary’s reputation for impartiality. Or, as the Michigan Supreme Court asserted, “[t]he appearance of fairness and impartiality is necessary to foster the people’s willingness to accept and follow court orders.”

In light of this compelling interest, the First Amendment does not preclude legitimate oversight by a governmental entity of the conduct of judicial candidates. Thus, in the Georgia case, the district court held that a committee of the Georgia Judicial Qualifications Commission could continue to issue public criticism of statments made by judicial candidates that are inconsistent with proper judicial deportment. In the Michigan and Alabama cases, it was not even suggested that this sort of oversight violates the First Amendment.

And criticism of the conduct of judicial candidates by professional organizations and by the press is absolutely consistent with the First Amendment. Such criticism is crucial because it gets results. For example, last March, during a primary election for the Illinois Supreme Court, a candidate aired a television advertisement that suggested that his opponent was responsible for a number of botched murder trials. But the opponent did not preside at any of these trials. In response to this clearly improper tactic, the Chicago Bar Association announced that it was withdrawing the “qualified” rating, which it had earlier awarded the candidate. Local editorialists were also highly critical of the candidate, who was handily defeated in the primary election in spite of having expended a record amount of money on his campaign.

Interestingly, all three of the court opinions considered here quoted the following passage from a concurring opinion written by the late U.S. Supreme Court Justice Potter Stewart: “There could hardly be a higher governmental interest than a State’s interest in the quality of its judiciary.” This is a declaration that the Brennan Center for Justice emphatically endorses. In furtherance of this belief, the Center urges judicial ethics boards, professional organizations and the press to continue to scrutinize the campaign conduct of candidates for judicial office in order to ensure that those candidates who are successful are also ethically qualified to assume the bench.

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