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In Judicial Elections, Due Process Is Paramount

Published: April 29, 2002

The National Law Journal
April 29, 2002

In Judicial Elections, Due Process Is Paramount
By Deborah Goldberg

The U.S. Supreme Court will soon decide Republican Party of Minnesota v. Kelly, a case with potentially serious implications for the due process right to fair and impartial state judges. Kelly concerns a canon of judicial conduct that prohibits judicial candidates from announcing their views on issues likely to come before them if elected to the bench. The purpose of the rule is to ensure that, to the extent humanly possible, judges do not prejudge cases or lead the public to believe that they have done so.

The Court should affirm the 8th U.S. Circuit Court of Appeals’ decision upholding the judicial canon.

The debate about this rule—at oral argument before the Supreme Court and in the press—has focused largely on the free-speech rights of the judicial candidates and the voters. But in judicial elections, there is another constitutional right at stake: The right of the parties who appear in court to have their cases heard by unbiased judges—precisely the right Minnesota seeks to protect. This due process right should be foremost in the justices’ minds in deciding Kelly.

Most judicial candidates appreciate rules such as the one in Minnesota. The rules bolster their commitment to fairness and impartiality—ideals by which we measure all judges and to which candidates of principle aspire. The rules allow each contestant to take the high road during the campaign, knowing that others will do so as well. They can resist pressure to prejudge cases in the press or campaign materials because the system supports that choice.

Without such a rule, there would be no coordination mechanism to discourage candidates from placing their interest in winning ahead of the public interest in due process. One can imagine how easily a candidate who provided sound bites on hot-button issues would get free media attention, while an opponent who refused to enter the fray would be accused of hiding from public scrutiny. Given the pressures of modern campaigns, the low road would be the only safe course to election.

It defies this reality to suggest that candidates could be permitted to say whatever they want and that voters could simply choose to vote for those who refuse to prejudge cases. Without the rule, there will be few such candidates.

In the federal system, if a judicial nominee compromises his or her ability to be impartial or to be perceived as such, the Senate can refuse to confirm. Formal canons of conduct are unnecessary because ethical standards are enforced in other ways through the judicial appointment process. But when voters must choose between two compromised candidates, they can’t reject them both and start over. Without a canon of judicial campaign conduct, unprincipled candidates don’t suffer; impartial justice does.


During oral argument in Kelly, Justice Antonin Scalia wondered aloud whether Minnesota could assert a compelling interest in impartial justice after opting for an elective judiciary. But Minnesota—like the other 38 states that hold judicial elections—did not abandon its fundamental commitment to due process when it transferred judicial selection from an elite to the electorate.

States that amended their constitutions to provide for elective judiciaries simultaneously adopted other constitutional provisions applicable exclusively to judges, to limit the impact of partisan politics and majority rule. The states were acutely aware of the need for electoral structures that preserved the difference between judges and other elected officials.

This history illustrates how support for judicial elections can be squared with a state’s compelling interest in fair and impartial courts. It also explains why it is wrong to assume that just because states elect judges, executives and legislators, the same campaign standards should apply to all.

Recently, states have acted to safeguard the distinction between judges and other elected officials by moving to nonpartisan elections (Arkansas) or establishing special judicial campaign oversight committees (Alabama). Minnesota’s highest court was similarly moved when it promulgated the rule at issue in Kelly. The case will resolve a split among three circuits on the constitutionality of that rule, versions of which exist in 38 states.

Given the national implications of the decision, one hopes that personal qualms about elected judiciaries—evident in oral argument and recent decisions of lower federal courts—will not distort the outcome in Kelly. Minnesota’s sincere, reasonable, and (for decades) successful effort to balance free-speech values with due process concerns deserves respectful consideration.

Sovereign states are owed maximal deference when electoral rules—whether for judges or otherwise—implicate competing constitutional concerns, as they do in Kelly. Minnesota should be entitled to say that judicial candidates willing to subordinate due process rights to the interests of their campaigns are not qualified for the state bench.

Deborah Goldberg is the Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law, which submitted an amicus brief in support of Minnesota in the Kelly case.