The Rule of Law in the Marketplace of Ideas: Pledges or Promises by Candidates for Judicial Election

Harvard Law Review, March 2009 | Go to article overview

The Rule of Law in the Marketplace of Ideas: Pledges or Promises by Candidates for Judicial Election


Judicial codes of conduct frequently prohibit candidates for judicial election (1) from making "pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office." (2) Yet, the judicial office itself requires a pledge, promise, and commitment to faithfully apply the law. (3) Distinguishing a legitimate promise to follow the law from an illegitimate promise to disregard it is surprisingly difficult, and both types of promise allow voters to control judicial decisionmaking through the choice of judicial personnel. This Note explores the relationship between these forms of judicial precommitment, as well as the implications for the constitutionality of judicial speech regulations.

In one illustrative opinion, Oklahoma's judicial ethics board found that the state's prohibition of "pledges, promises, or commitments" forbade a candidate's statement that "justice requires a fair system for all, especially little children who may be too small or unable to speak for themselves." (4) In the board's view, the statement impermissibly "commit[ed] the judicial candidate, if elected, to favor certain parties in litigation, i.e., children." (5) Yet, as the statement itself suggested, children may be just the kind of "discrete and insular minorit[y]" that the Supreme Court directs courts to treat with solicitude. (6) Can the state prohibit a candidate from promising to uphold her understanding of the law? Would such a prohibition serve the ends putatively advanced by judicial speech regulation?

These difficulties point to a fundamental conflict between the First Amendment and the rule of law. Judicial speech regulations seek to uphold a particular vision of the rule of law--according to which judges make decisions based on "judgment" rather than "will" (7)--by weakening the link between the substance of judicial decisions and the political will of the electorate. (8) The First Amendment's "marketplace of ideas," (9) however, ensures that voters can choose between candidates with disparate judicial philosophies. Because voters will choose between candidates on the basis of the outcomes those candidates' philosophies produce--as well as the political valence of those outcomes (10)--a candidate's firm commitment to a judicial philosophy unintentionally enables the politicization of judicial decisionmaking. Viewed through the prism of judicial selection, the law's own aspiration towards predictability and precommitment through legal doctrine allows voters to influence the outcomes of judicial decisionmaking and thereby undermines the rule of law.

This Note argues that prohibitions on "pledges, promises, or commitments" are not narrowly tailored to a compelling state interest. States instead ought to prohibit any statements--including announcements--regarding specific individual parties or cases, as those statements implicate the process of application of law to fact that distinguishes judicial decisionmaking from ordinary politics. Part I provides a brief history of judicial speech regulation and surveys recent cases assessing those regulations under the First Amendment. Part II analyzes the constitutionality of prohibitions on "pledges, promises, or commitments." Part III explores the competing principles at issue and proposes an alternative to the current approach. Part IV concludes.

I. JUDICIAL SPEECH REGULATION

The elected judiciary has been described as a "curiosity in our legal and political order." (11) At least some of the anxiety surrounding judicial elections may be ascribed to the manner in which they merge law and politics: judges are meant to decide cases according to law, whereas elections are associated with majority rule. (12) Beginning in 1923, codes of judicial conduct worked to reassert the separation of law and politics through restrictions on the behavior and speech of candidates for judicial office. This Part surveys the history of those restrictions and their more recent conflict with the First Amendment. …

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