The “White” Elephant in the Room: How to Make State Judicial Elections Better

 

Patrick Reagan, Associate Member, University of Cincinnati Law Review

When people think of state judicial elections, they often think of the advertisements. Some of the “greatest hits” in this motley collection include hokey banjo tunes, This has in part led to state judicial elections being criticized for becoming sideshows that appeal to people’s worst intentions. In Republican Party of Minnesota v. White, the Supreme Court allowed judicial candidates to espouse their beliefs on a host of political issues—thus politicizing and polarizing judicial elections and allowing the possibility of bad candidates appealing to outside groups to influence an election. Overturning White and reaffirming the need for political neutrality in judicial elections can make these elections cleaner, better, and fairer.

  1. Why is this a problem?

The vast majority of judges in the United States are elected, either through a retention election after an initial appointment or a nonpartisan general election.[4] In fact, the United States is the only country in the world that elects its judges.[5] In contrast, French judges are appointed after attending l’Ecole Nationale de la Magistrature, an elite training school in Bordeaux from which fewer than 5% of students make it to graduation because of its rigorous teaching methods

As previously mentioned, there is no uniform system for states to select and retain judges. Eight states hold partisan elections for trial court judge selections.[7] Twenty states (including Ohio) have nonpartisan elections.[8] Seven states have uncontested retention elections, and four states use different types of elections (partisan, nonpartisan, or retention) depending upon the county.[9]

This non-uniform system presents a unique opening for outside groups to influence judicial elections because of their access to experts who understand the system as well as the law those judges are applying. The U.S. Chamber of Commerce has operated the Institute for Legal Reform (ILR) since the early 2000s. This year alone, the ILR has received more than $10.7 million from the U.S. Chamber of Commerce for lobbying activities, and [10] The ILR is not the only the only interest group influencing judicial elections. The Brennan Center has compiled a list of outside groups influencing state judicial elections.[11]

  1. Republican Party of Minnesota v. White

Minnesota’s Code of Judicial Conduct contained an “announcement clause” that prevented judicial candidates from announcing their views on disputed legal or political issues.[12] In 1998, Gregory Wersal ran for Minnesota Supreme Court and sought an advisory opinion from the Minnesota Lawyers Professional Responsibility Board (MLPRB) addressing whether they sought to enforce the announcement clause.[13] The Board indicated it had doubts about the provision but could not answer the question because he did not include specific pieces of literature or campaign materials with his request.[14] Wersal then sued the Board in federal court, alleging the provision prevented him from exercising his First Amendment rights during the campaign.[15]

After granting cert, the Supreme Court considered “whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.”[16] The Court held “[t]he Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”[17]

Justice Scalia recited two compelling interests the respondents identified in attempting to survive strict scrutiny: (1) preserving the impartiality of the judiciary; and (2) preserving the appearance of impartiality The Court held  the provision was not narrowly tailored and did not survive strict scrutiny because, regardless of whether the judge had publicly espoused his/her views, “[t]he judge is applying the law (as he[/she] sees it) evenhandedly.”[19]

2.  Undoing the Damage and Depoliticizing Judicial Elections

Justice Scalia wrote “[a] judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.”[21]

While it is important to know where a judge stands on certain issues, judges and candidates for judicial office must be limited in what they say while campaigning. Otherwise, the potential for a dangerous nexus between sharply opinionated judges and a large pot of special interest money will be opened. The announcement clause White invalidated, which Justice Scalia wrote was underinclusive, was anything but. It was a sufficiently broad, yet narrowly tailored, provision that kept Minnesota judicial elections from turning into a cesspool of silver-tongued lawyers While Justice Scalia was correct that a candidate for judge could espouse his/her views before filing to run but not while running, judges are limited in their political activities upon assuming the bench.[24] Furthermore, in cases like United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, the Supreme Court has held that “it is not only important the Government and its employees in fact avoid practicing political justice, but it is also critical they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”[25]

Since White was decided, “political justice”[26] has crept into state judicial elections. For example, judges regularly seek the endorsement of pro-life organizations based on their views of Roe v. . Obviously, judges and judicial candidates will have opinions. However, for the sake of confidence in the judiciary, they should keep those opinions to themselves during their campaign. Some might say that allowing judges and judicial candidates to further espouse their views on contested political and legal issues will lead to more informed voters, thus allowing voters to make better choices. State judicial elections do give voters a unique glimpse of those who will be deciding thousands of cases that affect people on a very real level, but the forces of politics should be held at bay as much as possible from influencing those elections.

Electing a judge is different from electing a member of Congress, because politics and law are two fundamentally different things. Law structures basic human relationships. Politics, on the other hand, shapes the government and creates policies that affect society as a whole and can often be subjected to people’s worst intentions. Because of how deeply it touches us, law—and the people applying it—should be kept as far away as possible from politics. Provisions like the one invalidated in White go a long way to keep judicial elections focused on the qualifications of candidates, and a small bit of those candidates’ philosophies on the law. They erect a barrier between judicial elections and preserve the impartiality of the judicial system, which is a compelling interest that ensures societal interests are served and that people are treated fairly and with basic dignity. It also preserves confidence in the courts and maintains the balance of powers in the government. It will be harder for judges to do their job if they are viewed as too partisan.

Spending from the U.S. Chamber’s Institute for Legal Reform did not spike until after 2002, when White was decided.[27] In Washington state, outside groups poured millions into a race to unseat a member of the state supreme court who made rulings with which they disagreed.[28] In West Virginia, a coal company that was involved in a mine explosion that killed 29 workers spent $3 million to elect a state supreme court justice—who then participated in a decision that invalidated a $50 million judgment against the company. These examples, and others, show that the need to keep judges and judicial candidates away from politics is more compelling than ever.

Hypothetically speaking, an appointment system would fix things. However, there are flaws with this option because corruption has taken root in many state governments.[30] People should have a say in who interprets the law and administers justice, but people vying to become judges need to be kept away from engaging in overtly political speech so we can preserve judicial impartiality and prevent judicial elections from looking like other elections.

3.  Conclusion

In order for a strong judiciary to exist in the states, judges’ impartiality needs to be preserved. Law, including those applying it, and politics, should be kept away from each other. Perhaps a system where the governor makes the initial appointment and a retention election is held would be a good way to fix this, but that is a discussion for a different piece. In the meantime, the best first step in cleaning up state judicial elections is for the Supreme Court to overturn Republican Party of Minnesota v. White.

 

[1] Paul Newby – Tough But Fair, YouTube (Oct. 16, 2012) https://www.youtube.com/watch?v=aVte6i3zNTU.

[2] Allen Loughry My House Ad, YouTube (Sept. 26, 2012) https://www.youtube.com/watch?v=hDNxQqtDro0.

[3] Oster for Butler County Judge, YouTube (Apr. 11, 2014) https://www.youtube.com/watch?v=l0Wf0Too5mA.

[4] Fact Sheet on Judicial Selection Methods in the States, American Bar Association, https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf.

[5] Adam Liptak, U.S. voting for judges perplexes other nations, The New York Times (May 25, 2008) http://www.nytimes.com/2008/05/25/world/americas/25iht-judge.4.13194819.html.

[6] Id.

[7]Fact Sheet on Judicial Selection Methods in the States, American Bar Association, https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf.

[8] Id.

[9] Id.

[10]Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017, OpenSecrets.org, https://www.opensecrets.org/lobby/firmsum.php?id=D000022405&year=2017.

[11] Spending by Outside Groups in Judicial Races Hits Record High, Secret Money Dominates, Brennan Center for Justice (November 15, 2016), https://www.brennancenter.org/press-release/spending-outside-groups-judicial-races-hits-record-high-secret-money-dominates.

[12] Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (citing Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000)).

[13] Id.

[14] Id.

[15] Id. at 770.

[16] White, 536 U.S. at 768.

[17] Id. at 788.

[18] Id. at 775 (citing this case’s 8th Circuit opinion, Reupblican Party of Minnesota v. Kelly, 247 F.3d 854, 867 (8th Cir. 2001), in turn citing Cox v. Louisiana, 379 U.S. 559, 565 (1965) (“[a] State may also properly protect the judicial process from being misjudged in the minds of the public.”); Suster v. Marshall, 149 F.3d 523, 532 (6th Cir. 1998) (holding that the state had a compelling interest in preventing corruption or the appearance of such in the judiciary); cf. Reeder v. Kansas City Bd. of Police Comm’rs, 733 F.2d 543, 547 (8th Cir.1984) (“[i]t is proper for a state to insist that the police be, and appear to be, above reproach, like Caesar’s wife.”).

[19] Id. at 776.

[20] Id. at 779-780 (“[t]he short of the matter is this: In Minnesota, a candidate for judicial office may not say ‘I think it is constitutional for the legislature to prohibit same-sex marriages.’ He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.”).

[21] Id. at 777.

[22] See Id. (“’[p]roof that a Justice’s mind at the time he[/she] joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.’”) (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion)).

[23] See Id. at 779 (“judges often state their views on disputed legal issues outside the context of adjudication—in classes that they conduct, and in books and speeches.”).

[24] See, e.g., Ohio Canons of Judicial Conduct, Canon 7.

[25] See, e.g., United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548, 565 (1973).

[26] See Id.

[27] Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017, OpenSecrets.org, https://www.opensecrets.org/lobby/firmsum.php?id=D000022405&year=2017.

[28] Gene Johnson, Political groups are pouring millions into state supreme court races, PBS (Nov. 1, 2016) https://www.pbs.org/newshour/nation/political-groups-pouring-millions-state-supreme-court-races.

[29] See Sal Gentile, Interest groups spend millions to control state courts, study finds, PBS (August 17, 2010). http://www.pbs.org/wnet/need-to-know/culture/interest-groups-spend-millions-to-control-state-courts-study-finds/2892/.

[30] See Harry Enten, Ranking The States From Most To Least Corrupt, FiveThirtyEight (Jan. 23, 2015) https://fivethirtyeight.com/features/ranking-the-states-from-most-to-least-corrupt/.

Advertisements