Judge on the Stump

The conclusion of the Supreme Court's term usually brings a spate of opinions in the most contentious and closely divided cases of the year, and this year's session did not disappoint. On its final day, the Court issued four 5-to-4 rulings, among them its controversial decisions on school vouchers and student drug testing. All but lost in the ensuing hubbub was an important holding that struck down a limitation on the speech of candidates for state judicial office. In finding that the First Amendment rights of judicial candidates outweigh a state's efforts to curtail abuses of the process, the Court threw into question similar regulations in 38 other states. Judicial races increasingly resemble political ones, as massive amounts of money buy advertisements that distort, misrepresent and politicize judicial opinions.

Two years ago in Michigan, for instance, with three Republican justices up for re-election, a record $15 million was spent in a battle to control the state Supreme Court. The Republicans' backers paid for TV spots that attacked one Democratic candidate for previous rulings he had made as a lower appellate court judge. The ads claimed that the judge "gave" a pedophile "a slap on the wrist" when, in fact, the judge had been part of a majority on an appellate panel that had merely upheld a trial judge's sentence on appeal (as the panel was bound to do by law). In case viewers missed the point, though, the ad included both the judge's name and the word pedophile in large letters.

The specific question in Republican Party of Minnesota v. White was a relatively limited one: Can the state of Minnesota, which elects its judges like many other states, adopt a judicial regulation prohibiting candidates for judicial office from announcing their views on "disputed legal or political issues"? That is, can a state limit a prospective judge from announcing a position because such a statement might compromise the judge's independence? (A companion regulation that prevents candidates from "making pledges or promises of conduct in office" was not contested.)

The impact of this decision goes well beyond Minnesota, since the flood of big money into judicial races is increasingly the national norm. [See "Justice For Rent: The Scandal of Judicial Campaign Financing," TAP, May 22, 2000.] As a recent report by the Brennan Center for Justice documented, donations to state supreme court candidates grew to more than $45 million in the 2000 election cycle, an increase of 61 percent from just two years earlier. Worse yet, the increase is coming from parties with significant interests before these courts. According to the National Journal, two of the nation's biggest business groups, the U.S. Chamber of Commerce and the Business Roundtable, have already amassed a $25 million war chest and are endeavoring to raise more. Their aim is to elect more business-friendly state supreme court justices and attorneys general.

At the center of the Minnesota case, as with most challenges to campaign-related reforms, is a classic First Amendment question: To what extent can candidates' statements be restricted, either by a specific rule or through limitations on spending in campaigns? In 1996, Gregory Wersal, a Republican candidate for the Minnesota Supreme Court, criticized a number of the court's decisions and positioned himself as a strict constructionist determined to dethrone the judicial "activists." Fearing sanction for having gone beyond the bounds of the state's prohibition on announcing positions, however, he withdrew his candidacy. When he ran two years later, the state's ethics lawyers told him he could not make those kinds of statements in his campaign. At that point, together with the state Republican Party and the American Civil Liberties Union, he filed suit.

In striking down the Minnesota rule and overturning a decision by the 8th U.S. Circuit Court of Appeals, U.S. Supreme Court Justice Antonin Scalia, writing for the conservative majority, concluded that the regulation lacked the necessary compelling interest because of the very nature of elections themselves. The First Amendment, he wrote, does not permit "leaving the principle of elections in place while preventing candidates from discussing what the elections are about."

But while Scalia and company hung their hats on the First Amendment, the justices were clearly struggling with another question lurking just beneath the surface. Are judges political actors? If so, are their experiences and opinions relevant to the job they seek -- and to the public's ability to assess their candidacy? In a dissenting opinion that focused on this very point, Justice Ruth Bader Ginsburg and the three other liberal justices argued that "whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency." Scalia countered that Ginsburg "greatly exaggerates the difference between judicial and legislative elections," and that "a true picture of the American system" is one in which judges "possess the power to 'make' common law." Which, he said, "is precisely why the election of state judges became popular."

The question of judicial politics has a particular resonance for the justices themselves, each of whom has had to confront the issue firsthand during his or her confirmation hearings. In a not-so-subtle reference to Scalia's own refusal to take a position on any case during his confirmation hearings, Ginsburg wrote: "The line each of us drew in response to preconfirmation questioning, the Court would no doubt agree, is crucial to the health of the Federal Judiciary."

The difference, of course, is that a Supreme Court justice, like any federal judge, is not elected, but appointed for life. The drafters of the Constitution deliberately sought to ensure that federal judges would not be beholden to anyone once on the bench. What underlies the very idea of state judicial elections, by contrast, is the public's belief that its judges should be more responsive to the people.

The Minnesota decision clearly could impede the efforts currently afoot to limit abuses in state judicial elections. Not only is the decision likely to lead to a series of fights over ethical rules in many states, it could further embolden big-money interests to go after judges as though they were politicians. This could set in motion a spiral in which judges and candidates strike back at one another with ever more costly advertisements that give ever shorter shrift to the legal issues involved.

There are still a number of ways to rein in judicial politicking: putting limits on campaign donations, enacting full public financing of elections, replacing judicial elections with appointments, monitoring unethical campaigning better and urging voluntary compliance with limits on speech. The bad news, of course, is that all these reforms face uphill battles. The good news is the growing public recognition of the problem and realization of the danger. In a recent poll, 76 percent of voters said they believe donors to judges' campaigns get special treatment in court -- and 26 percent of judges said they agree. Furthermore, eight in 10 state judges and nine out of 10 voters believe that special interests are trying to use the courts to shape public policy to their own ends.

These numbers could signal a potential groundswell for change and a return to what Ginsburg described as a system that has used "experiment tested by experience to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary." Notwithstanding the view of the five conservatives on the Court, that is the true essence of federalism and the promise of judicial independence.