Judicial Campaign Oversight Committees' COMPLAINT HANDLING in the 2006 Elections: Survey and Recommendations

By Fortune, William; White, Penny J. | Judicature, March/April 2008 | Go to article overview

Judicial Campaign Oversight Committees' COMPLAINT HANDLING in the 2006 Elections: Survey and Recommendations


Fortune, William, White, Penny J., Judicature


Other than candidates' self restraint, judicial campaign oversight committees serve as the only barrier against the "Barbarians at the Gate"

Young mother with photo of child. "He was adorable. Stevie had just turned three when he was beaten and murdered. The Andrews decision let him go free after serving just a third of his sentence. If Justice Alexander hadn't voted for that decision this wouldn't have happened."

Washington 2006 - John Greon ad.

"Louis Butler worked to put criminals back on the street. Like Ruben Mitchell who raped an 1 1-year-old girl with a learning disability. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?"

Wisconsin 2008 - Mike Gableman ad.

Small child with teddy bear saying "Michael Gableman's ads are scaring me. Call Michael Gableman and tell him to stop scaring me and other kids."

Wisconsin 2008 - Louis Butler ad.

"Nine years ago a viscious thug stabbed and repeatedly raped a pregnant woman leaving her and her unborn child to die. Renaldo Adams was sentenced to die. But now, thanks to Justice Drayton Nabors, Adams is off death row."

Alabama 2006 primary - Tom Parker ad.

"Learn more about Tom Parker and his ties to liberal trial lawyers."

Alabama 2006 primary - Drayton Nabors ad.

"Why has Sue Bell Cobb attacked Drayton Nabors? Sue Bell Cobb has taken money from liberal trial lawyers. And who does she support? John Kerry."

Alabama 2006 general - Drayton Nabors ad.

These statements, and many similar ones, made by incumbents and challengers, are becoming common in state judicial elections. Though arguably distasteful and inconsistent with the role of a neutral, independent judicial officer, they are not prohibited. After the decision in Republican Party of Minnesota v. White,1 these statements are likely not even unethical. They are instead protected by the First Amendment and as such beyond governmental restriction.

In White the Supreme Court struck down an ethics provision that prohibited candidates for judicial office from "announcing their views on disputed legal and political issues." In its aftermath, lower courts, judicial ethics bodies, and state supreme courts have eliminated restrictions on judicial speech and conduct beyond what the White decision required. The result has been the onset of a new environment in judicial campaigns, an environment that is often beset with negative advertising, contentious campaigns, and undignified behavior.

The post-White climate not only allows, but arguably encourages, judicial candidates to go for the jugular, prompting campaign statements that come strikingly close to predicting future rulings as well as those that unfairly, and sometimes untruthfully, criticize an opponent's character. But while the High Court's decision took away the power of the government to curtail judicial speech that is rancorous and unseemly, the decision did not tie the hands of those who wish to promote more honorable judicial campaigns. In his concurring opinion, Justice Kennedy offered this advice to those who desire to advance the interests of judicious campaigning and improve the conduct of candidates for judicial office:

If Minnesota believes that certain sorts of candidate speech disclose flaws in the candidates credentials, democracy and free speech are their own correctives. The legal profession, the legal academy, the press, voluntary groups, political and civic leaders, and all interested citizens can use their own First Amendment freedoms to protest statements inconsistent with standards of judicial neutrality and judicial excellence. Indeed, if democracy is to fulfill its promise, they must do so. They must reach voters who are uninterested or uninformed or blinded by partisanship, and they must urge upon the voters a higher and better understanding of the judicial function and a stronger commitment to preserving its finest traditions. …

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