Endorsements in Judicial Campaigns: The Ethics of Messaging
Salokar, Rebecca Mae, Justice System Journal
State judicial elections are unlike races for legislative or executive office in that judicial candidates are subject to codes of conduct that curtail what they may say during their campaigns. As a result, endorsements from organizations and elites are especially important in judicial campaigns because they serve as signals to the electorate that the candidate is acceptable to identifiable constituencies and communities. This article discusses the sources of judicial endorsements, the processes by which endorsements are made, and how endorsements can be used strategically by judicial candidates. It also examines endorsements in light of the ethical limits imposed by the need to maintain an independent and impartial judiciary, and proposes avenues of reform that may curtail improper messaging by candidates for the bench.
Judicial candidates are in the difficult position of running for office on little more than their personality, professional experience and reputation, and vague promises of fairness and justice. Unlike their legislative, executive, and municipal counterparts who promise voters a litany of policy positions, candidates for the bench find themselves gagged on the campaign trail by ethics rules, codes of conduct, and the inherent nature of the profession to which they aspire. That gag may be even tighter when the candidate is running for office in a state that selects its judges in nonpartisan elections. Judicial candidates cannot promise potential voters much more than, "If elected, I will follow the law." Given these limits, the tradition of garnering endorsements from organizations and community leaders is an important element of judicial campaign strategy.
Several organizations have recently placed judges and judicial candidates in the ethical quandary of having to decide whether to engage in the endorsement process. Sparked by the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White, interest groups are revising their endorsement processes to probe the personal beliefs of judicial candidates on salient and controversial political issues. Such practices have the potential to compromise a candidate's appearance of impartiality and can possibly limit the ability of a judge to hear a case. However, endorsements served as messages to the public of a candidate's acceptance to particular constituencies and communities long before judicial candidates were ungagged by White.
In this article, I examine the practice and politics of the endorsement process in the thirty-one states that employ partisan or nonpartisan elections for some or all of their judges. Following a review of the various types of endorsements available to judicial candidates and candidates' perceptions of their import, I discuss the process of securing endorsements and the ethical dilemmas that endorsements can pose for judicial candidates, especially in the wake of the White decision. Much of the background for this discussion stems from my extensive involvement in the 2004 judicial campaign season in south Florida and from conversations with the leadership of endorsing organizations and candidates running for judicial office in Florida.
To prospective candidates who are mining this article for ideas on managing their own campaigns, a word of caution is in order. Do your homework. Know and study your own state's code of judicial ethics, the opinions of your judicial ethics advisory committee, and relevant court opinions on campaign ethics. While the observations made here may be particularly useful to candidates running statewide, regionally, or in highly populated urban areas, there are vast differences among states with respect to the ethical standards to which judges and judicial candidates are held. For example, some states prohibit judicial candidates from personally seeking any endorsements; others, e.g., Florida and Arkansas, prohibit the solicitation and use of endorsements from partisan organizations, or, as in North Dakota, the solicitation of any "political" endorsements. …