Sunday’s New York Times included an op-ed by Professors Erwin Chemerinsky and James Sample making the case that “states with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.” According to the authors, “rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient.” Therefore, “the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”
The op-ed reminded me of this excerpt from Justice Kennedy’s concurrence in Minnesota v. White:
Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of the voters, not the State. See Brown v. Hartlage, 456 U.S. 45, 60 (1982). The law in question here contradicts the principle that unabridged speech is the foundation of political freedom.
The State of Minnesota no doubt was concerned, as many citizens and thoughtful commentators are concerned, that judicial campaigns in an age of frenetic fundraising and mass media may foster disrespect for the legal system. Indeed, from the beginning there have been those who believed that the rough-and-tumble of politics would bring our governmental institutions into ill repute. And some have sought to cure this tendency with governmental restrictions on political speech. See Sedition Act of 1798, ch. 74, 1 Stat. 596. Cooler heads have always recognized, however, that these measures abridge the freedom of speech–not because the state interest is insufficiently compelling, but simply because content-based restrictions on political speech are “ ‘expressly and positively forbidden by’ ” the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 274 (1964) (quoting the Virginia Resolutions of 1798). The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgment of speech.
That case did not address the sort of speech restrictions that Professors Chemerinsky and Sample seem to be asking for, but I think the logic applies with just as much force. Even liberal supporters of Wisconsin’s public-financing scheme agree that it has made judicial candidates irrelevant. As Mike McCabe, executive director of the Wisconsin Democracy Campaign, said during the most recent Prosser v. Kloppenburg race: “The candidates for the most part were on the sidelines; they were bystanders in this race.” The good professors would now like the Court to give states like Wisconsin permission to restrict advertising financed by independent expenditures, thus making the election process totally opaque.
If the tone of judicial elections is changing, it is because courts are increasingly willing to disregard their limited role and instead make statewide policy from the bench. In a world where judges are super-legislators, of course the stakes are going to be higher than ever. If you think those stakes will be lower if you restrict speech or give the power to select judges to some “independent” commission, then I have a bridge to sell you. The answer is not to attack the peoples’ voice in the judicial-selection process, but to elect or appoint judges who will enforce the rights that are in the Constitution and refuse to invent rights that aren’t there.