American Judges Association
Court Review: Volume 39, Issue 2 - Judicial Candidate Speech After Republican Party of Minnesota v. White
Date of this Version
The people want to elect judges. Notwithstanding a typical Washington lawyer’s view of the judiciary enshrined in Article III of the Constitution, the citizens of 39 states insist that judges should be subject to electoral accountability and not be given lifetime appointments by the government elites. For that reason, 53% of state appellate judges must run in contested elections for an initial term on the bench (out of 1,243 judges). Likewise, 66% of state trial court judges (8,489) must first run in contested elections. Eight-seven percent of all state appellate and trial judges face some type of election for subsequent terms. This insistence on elections creates a tension that Professor Stephen Gillers calls the “on the one hand, on the other hand” dilemma. On the one hand, we expect that judges not make extra-judicial or prejudicial comments about the law, particularly controversial legal principles, while on the other hand voters want information in order to cast an informed vote. Likewise, there is a constitutional dilemma. The due process rights of litigants must be preserved, but the First Amendment rights of candidates and their supporters must be honored. The Supreme Court of the United States in Republican Party of Minnesota v. White, has weighed in in favor of First Amendment rights. Candidates cannot be gagged by Canon 5.
Published in Court Review: The Journal of the American Judges Association, 39:1 (2002), pp. 12-14. Copyright © 2002 National Center for State Courts. Used by permission. Online at http://aja.ncsc.dni.us/htdocs/publications.htm.