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Jewish World Review July 10, 2002 / 1 Menachem-Av, 5762

Steven Lubet

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Justice is blind? Your fate is being decided by someone whose very election depended on prejudging your case -- If you should someday have the extreme misfortune to become embroiled in a lawsuit, you would certainly expect the judge to be completely open-minded. You would no doubt be shocked to discover that the judge, in running for office, had already announced her intention to rule against you. What could be more unfair than having your fate decided by someone whose very election depended on prejudging your case?

Unfortunately, the United States Supreme Court recently validated that very conduct. Ruling in a case called Republican Party of Minnesota vs. White, a five-justice majority threw out a Minnesota rule that prohibited judicial candidates, including incumbents, from announcing their views on disputed legal issues that are likely to come before the candidate's court, if elected. Instead, the majority held that the 1st Amendment protects wide-open campaign speech, even if it intimates how the judge would rule on identifiable "real-life issues."

In the 37 states that elect some or all of their judges, candidates and sitting judges are now free--indeed, encouraged--to run on platforms that virtually announce their future decisions.

Of course, we expect this from candidates for legislative or executive office; politicians take positions in order to get elected and strive to fulfill them afterward. They are supposed to be responsive to the electorate. Judges, however, are supposed to rule according to the law, no matter what the public wants. Therefore, campaign commitments are contrary to the very premise of judging, and threaten to undermine the due process rights of litigants.

Both the public and the judiciary are better served when the candidates refrain from committing themselves to future rulings. There is simply no good argument in favor of turning judicial elections into referendums on specific outcomes. While a certain amount of "signaling" may be unavoidable--and uncontrollable--in hard-fought campaigns, there is every reason to attempt to prevent or discourage it through reasonable restrictions such as Minnesota's.

The court's opinion attempts to minimize the problem by observing that all judges come to the bench with views about important issues, which they will likely continue to hold even if they have not been expressed during the electoral campaign.

Since judging is inevitably influenced by the candidates' preexisting opinions, whether or not publicly stated, campaign restrictions become pointless.

But all views are not alike, in either origin or intensity, and the court's analysis therefore confuses two very different phenomena. All judges, no doubt, come to the bench with a few relatively settled ideas about major legal issues, and these are unlikely to be enhanced (or diminished) by announcement during the campaign. Alas, other views, or more accurately, "stances," may be developed for the very purpose of the campaign. That is, the candidate may have no entrenched opinion about a particular matter, but she will be motivated to take a popular position in order to be elected. Such situations are often created when special-interest groups press candidates for answers to questionnaires, or even for outright commitments during the campaign. In other words, the pressure to make campaign statements may result in the multiplication of "opinions," far beyond the judicial candidates' previously settled ideas.

Simply stated, judicial campaign commitments are bad, bad, bad. They have a corrupting influence on the judicial system itself, and they tend to subvert the basic guarantee of due process--that cases will be decided in court on the basis of individual merit, rather than at the ballot box.

According to the court's majority, the defining property of a judicial campaign is its electoral nature, meaning that speech cannot be limited in any significant way. Democracy demands information, and who can provide it better than the candidates? But this ignores the crucial difference between a judge and a legislator. If we recognize the defining property as the judicial nature of the office sought, then there is surely a compelling public interest in at least those limitations necessary to protect the ultimate value of impartial judging.

JWR contributor Steven Lubet is Professor of Law at Northwestern University and the author, most recently, of Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth . Comment by clicking here.


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08/16/01: Who died and made the federal judges gods?

© 2001, Steven Lubet