The Limits of White
Gray, Cynthia, Judicature
Many would read Republican Party of Minnesota v. White expansively, but to do so is an unjustified abandonment of the state courts' efforts to promote judicial integrity, impartiality, and independence.
Relying on recent federal decisions, judicial candidates and others are testing the limits of what campaign and political conduct is acceptable for judges and judicial candidates. In a challenge to a provision in the Minnesota code of judicial conduct, the United States Supreme Court held that states could not, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues.1 On remand, the Court of Appeals for the Eighth Circuit held that prohibitions on judicial candidates identifying themselves as members of a political organization, attending political gatherings, using endorsements from political organizations, and personally soliciting contributions from large groups or in writing are also unconstitutional.2
No doubt some who continue to defend traditional interpretations of all the canons are unrealistically optimistic about the limits of the decision in White or simply disagree with it. Other groups, however, have just as clearly exaggerated the effect of the holdings and argued, in comments filed with the American Bar Association Joint Commission to Evaluate the Model Code, that almost all restrictions on the political activity of all judges should be eliminated-not just the restrictions on campaign activity and not just the restrictions on elected judges. That argument goes far beyond the actual holdings, and such an expansive reading is an unjustified abandonment of the state courts' efforts to promote judicial integrity, impartiality, and independence.
Although the Supreme Court majority opinion had some broad comments about judicial impartiality, the primary focus of the opinion was allowing candidates to communicate relevant information to voters during an election campaign. It is not likely that the justices intended to announce a principle that would allow even federal judges to, for example, serve as leaders of political parties and endorse candidates for president, which is the position the Joint Commission is being urged to take. Moreover, it is important to consider before attempting to apply the holding to other contexts that the vote was 5-4, and that two members of the majority are no longer with the Court.
Because the Eighth Circuit is not the Supreme Court, states in other circuits or with different canons are not compelled to follow the remand decision, particularly in light of the very convincing dissent and some flaws in the majority's argument. The majority did not even understand what the case was about, claiming it was "not about what happens after an election." The interest advanced by the state, however, was judicial impartiality, clearly and crucially implicating the judicial decision making that "happens after an election."
The majority concluded that the Minnesota canon's ban on involvement with political parties was underinclusive because it did not prohibit membership in interest groups such as the National Rifle Association or the National Organization for Women. Even assuming that membership in those organizations is not prohibited under other provisions of the code, the majority itself elsewhere explained why such a distinction is legitimate: associating with an interest group that is narrowly focused on particular issues "conveys a much stronger message of alignment with particular political views and outcomes," and, therefore, is more likely to be protected under White than association with a political party.
Moreover, as the dissent argued, the partisan activities clause regulates "a judicial candidate's relations with people, and organizations of people, not the candidate's relations with issues."
[O]nce the partisan activities clauses are gone, having espoused similar positions on issues will be the least significant aspect of the party's relationship to its successful candidate; the truly significant point is that the candidate may owe his or her accession to the bench to the litigant before the bar and may be similarly dependent on that litigant for any hope of success in future elections. …