Judicial Elections

From Judgepedia

Summary

In the United States, most judges are elected. At least thirty-nine states use some form of election to choose some of their judges. It has become popular to attack the "staggering escalation" of money in these elections, the growth of political parties and interest groups in judicial elections, more television advertising, and deterioriation in their "tone."

In 2002, a wide variety of left-leaning organizations -including the Campaign Legal Center, Interfaith Foundation, and Public Campaign- came together to start Justice at Stake (JAS). The organization regularly decries the role of money in judicial elections and makes consistent presumptions the increased competition, funding, and speech inveriably lead to corruption. To inspire fear, JAS called 2006 the "most threatening year yet to the fairness of America’s state courts."

The discourgaging element of JAS' advocacy is that it lacks a foundational respect for the constitutional rights associated with free speech, elections, and representative government. Where JAS complains about money, others realize that for every dollar spent more speech is funded. When more advertisements are aired on television, more opinions compete for Americans' attention. And when there is more competition through citizen or business organizations, Americans are promised more choices. Unfortunately, what JAS and other reform organizations misunderstand is that free speech, competition and participation are inspiring news, not cause for sorrow.

In fact, the norms of increased speech and competition are well-rooted in historical First Amendment cases:

"Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc.,418 U.S. 323 (1974).

"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

Constitutional Primer on Judicial Elections

The judicial institution guards itself from scrutiny, criticism, and competition through burdensome codes of judicial conduct. These codes limit what citizens may speak, share, write, or spend to discuss judicial candidates – a central function of representative government. Government regulation of any political activity raises serious First Amendment problems, especially in elections – an area where the Supreme Court has said receives the fullest and most urgent protection. As a result, codes of judicial conduct often fail when challenged under the First Amendment. At issue is the intermix between judicial accountability and judicial independence.

First Principles:

Citizens have a right to receive information about judicial candidates. See Brown v. Hartlage, 456 U.S. 45 (1982).

Challengers and incumbents have a right to criticize, discuss, debate, or communicate any number of issues related to judicial elections. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

Government may not determine what topics or themes should be discussed in an election. See, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) ("we depend for ... correction not on the conscience of judges and juries but on the competition of other ideas").