Okay, Judge, You Hit Your Number or Die in This Room*

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars –  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

This Post Has 2 Comments

  1. Chris King

    In December of 2007, the entire Supreme Court of Wisconsin signed a letter calling for “realistic, meaningful public campaign financing for Supreme Court Justices.” The Justices were concerned with the risk that “the public may inaccurately perceive a justice as beholden to individuals or groups that contribute to his or her campaign.” The letter is available at http://www.wicourts.gov/news/archives/view.jsp?id=60

    There’s something unseemly about a judge asking for money, even when the money is for the judge’s campaign. I think it is important to ask if we want our judges “dialing for dollars” like Tommy Carcetti in the link above. How much greater is the risk of the public perceiving a judge as beholden to campaign contributors when the judge is himself able to call and ask for contributions?

  2. Chuck Clausen

    Professor Esenberg is right on.

    The political leanings of judges and judicial candidates are not always, but usually, well known. At the supreme court level, one doesn’t need a crystal ball to separate the democrats from the republicans. Who is WEAC supporting? Who is WMC supporting? Was anybody worried that Annette Ziegler might be too liberal? Louis Butler too conservative? Different considerations obtain in elections for court of appeal and circuit court seats, but in most of those elections, an incumbent is running and running unopposed.

    I share Prof. Esenberg’s concern with Judge Crabb’s striking down the prohibition against judges and judicial candidates engaging personally in soliciting campaign contributions. I served as a member of and reporter for the Fairchild Commission that recommended the rules struck down by Judge Crabb. One of the biggest concerns on the commission with regard to judge’s soliciting money was the impact on lawyers, i.e., those most likely to be targeting by the contribution-seeking judge or candidate. Most of the lawyers on the commission believed not only that it was ‘unseemly’ for a judge to be grubbing for campaign contributions, but also that it puts solicited lawyers in a position in which it is hard to say ‘no.’ It is especially hard when the solicitor is an incumbent judge and the lawyer has cases in front of the judge or expects to have such cases in the future. Unless they have changed since I retired from my ‘legal life,’ the rules place no time restrictions on judicial fundraising. Thus, a judge can engage in building up a war chest throughout his or her term of office, six years for the circuit court judge, 10 years for the court of appeals judge. If a judge builds up a sufficient war chest during his or her incumbency, s/he will effectively scare off any challenger at the next election. The ABA Ad Hoc Committee on Judicial Campaign Finance wrote in its Report and Recommendation (Jan. 1999):
    “War chests” are deemed one of the major problems in the current campaign finance scene generally. We believe they are even more problematic in judicial campaigns . . . ‘In our current system, judges and judicial candidates have many incentives to raise every dollar they can, which increase the pressure on lawyers to contribute. Even candidates without opponents or candidates who have reached the sum they expect to spend, often continue trying to raise all they can. And why not, since any excess funds can be retained for a later campaign.’

    Perhaps the truest observations in Judge Crabb’s decisions are the last two sentences in the following excerpt:

    “Reviewing these canons in light of the Supreme Court’s opinion in [Republican Party of Minnesota v White, 536 U.S. 765 (2002 )(White I)] and defendants’ failure to show that any of the rules challenged by plaintiff is narrowly tailored to promote a compelling state interest, as required under the First Amendment, I must conclude that the rules at issue do not withstand strict scrutiny. This conclusion should not be viewed as denigrating the conscientious efforts made by the state supreme court and many lawyers over many years to draft canons that they believe are necessary to maintain a non-partisan judiciary. It may be that the job is impossible. Once a state decides, as Wisconsin has, that judges are to be democratically elected along with the members of the other two branches of government, the task of legislating nonpartisanship and the appearance of impartiality without violating the First Amendment becomes a thicket of complexity.

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