Fixing White

Article excerpt

The federal courts should stop dismissing the states' concerns about judicial independence and start helping them interpret the First Amendment in a way that gives due deference to the interests of candidates, voters, litigants, and the public, and that does not corrupt the concept of judicial accountability.

It must be tempting for members of the Minnesota Supreme Court and other elected judges to say "we told you so" when they run into justices of the United States Supreme Court at a federal/state judicial conference or bar meeting. In 2002, the federal high court rejected the Minnesota court's conclusion that restrictions on judicial campaign speech (specifically the announce clause) were a necessary deterrent to the politicization of judicial campaigns and, therefore, of the judicial office. Republican Party of Minnesota v. White, 536 U.S. 765 (2002), is not entirely to blame for headlines like "Spending Leaps in Races Across U.S.," and "Appellant Seeks Recusal Because of Campaign Comment," and "In Kentucky Supreme Court Race, Judges Get Out Their Soapboxes." Interest groups with no interest in judicial independence, and judges and judicial candidates who would do better in legislative or executive roles, share some responsibility.

But the decision understandably has been read as a license to ignore traditions of restraint and dignity in judicial campaigns, accelerating the deterioration. The aftermath of White reveals that the five-justice majority was surprisingly naïve about the threat politics poses to judges. Former Justice Sandra Day O'Connor, one of the five-member majority in White, appeared to acknowledge that miscalculation when she said last year in a speech to California judges that her vote in the White case was one of the few decisions in her long career that gave her pause.

Although the holding in White was narrow, the majority's analysis opened the door to a series of lower court decisions that have held unconstitutional, among others, restrictions on personal solicitation of campaign contributions and partisan political identification in states with non-partisan elections. Fortunately, the American Bar Association held its ground in the recent revisions to the model code of judicial conduct, rejecting attempts to eliminate almost all restrictions on the political activity of judges.

Contrary to the arguments of some, requiring a judge to disqualify based on political conduct that raises a question about impartiality is not an effective alternative to a prohibition of that conduct. Disqualification in many states is self-executing. A judge who should recuse may not do so, and having the decision reversed on appeal years later is not an adequate remedy and damages trust in the judicial process. Moreover, if a state supreme court justice refuses to disqualify, litigants generally have no way of even challenging that decision. Finally, frequent disqualifications would create administrative burdens in the court system and, on the supreme court level, mean that the people chosen by voters to resolve the thorniest legal issues in the state would be unavailable to do precisely that. …