American Judges Association
Date of this Version
Judges sometimes are unrealistic. Whatever one’s view of the recent Pledge of Allegiance decision, do you remember Clinton v. Jones, in which eight justices had no doubt that there were no serious risks in allowing Paula Jones’ lawsuit to proceed against a sitting President? The Supreme Court’s decision about judicial elections shows how unrealistic five justices can be about what happens in election campaigns, and also—ironically—about how much judges differ from legislators and others who run for office. Reality was captured concisely by Robert Hirshon, president of the American Bar Association, who said, “This is a bad decision. It will open a Pandora’s Box . . . .” The decision will make a change in judicial election campaigns that will downgrade the pool of candidates for the bench, reduce the willingness of good judges to seek reelection, add to the cynical view that judges are merely “another group of politicians,” and thus directly hurt state courts and indirectly hurt all our courts. After noting the majority and separate opinions (which, unsurprisingly, open many questions), I predict what litigation lies ahead, then describe the judicial election scene and prospects for reform, and last, suggestions to candidates and all judges. The decision is not reducible to the simplistic, misleading proposition that “[n]otwithstanding ABA policy to the contrary, the law of the land now holds that the First Amendment trumps all other considerations when it comes to judicial elections.” Justice Scalia’s majority opinion held that Minnesota could not prohibit a candidate for judicial office from “announc[ing] his or her views on disputed legal or political issues.” Although that “announce clause” has been law in only nine states, the decision will impact all but one of the 39 states in which at least some judges face some type of elections, because all states have canons limiting what candidates may say in campaigns. Another limitation, as Justice Scalia wrote, bars judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office,”—a prohibition that, as he wrote, “is not challenged here and on which we express no view.” As for a third limitation, “[t]he Court’s treatment of the [‘commit clause’] precluding a candidate from making ‘statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court’ was, unfortunately, not a model of clarity.”
Published in Court Review: The Journal of the American Judges Association, 39:1 (2002), pp. 8-11. Copyright © 2002 National Center for State Courts. Used by permission. Online at http://aja.ncsc.dni.us/htdocs/publications.htm.