Bench Memos

Cautiously Optimistic About First Amendment Rights of Elected Judges

On Tuesday, the Supreme Court heard arguments in Williams-Yulee v. The Florida Bar, addressing whether a law barring candidates running for judicial office from “personally solicit[ing] campaign funds” runs afoul of the First Amendment.  While predictions based on oral argument are always tenuous, my read is that we’ll see a 5-4 decision overturning Florida’s law.   

One interesting theme I noted in the arguments was that many of the justices – including those who seemed to favor robust speech protections in this area – appeared uncomfortable with the idea of judicial elections in the first place.  Unfortunately, neither attorney arguing the case made even a half-hearted effort to defend their state’s method of judicial selection, and at times they even disparaged it.

I suspect that the justices, none of whom had run for elected office themselves, were slightly horrified at the thought of people like them having to go hat-in-hand asking for money or being required to run a campaign.  In fact, I don’t doubt that judges feel that way even in states where judges are elected.  I bet many elected legislators find the process distasteful, too.  It’s part of the reason Churchill called democracy the worst form of government, except for all the rest.  But empirical evidence does show that other forms of judicial selection – in particular forms like the Missouri Plan that most dramatically curtail accountability to the citizens – tend to encourage less citizen participation, are more out of step with their population, and are actually worse at checking corruption than elected systems.

As Williams-Yulee’s lawyer observed, a state with judicial elections has made a choice not to keep judges out of the political fray in the first place.  In such a system, the state is acknowledging that their judges have a role that is political in some ways (while obviously maintaining impartiality as to individual litigants).  This reflects the difference between state judges who may have a valid role to play in developing state common law and federal judges whose role is truly limited to interpreting the Constitution and laws ratified and enacted by others.

Assuming that the Court applies strict scrutiny here, Florida must show a compelling interest in limiting judicial candidates’ speech.  And as uncomfortable as some aspects of judicial elections made the justices, they and the parties seemed to agree that “judicial dignity” wasn’t a strong enough reason to limit speech. Instead the state would have to show that the limits advance classic interests like preventing quid-pro-quo corruption, an appearance of impartiality, and coercion of donors. 

Another interesting feature of the arguments came out in discussing whether Florida’s interest in preventing corruption was supported by empirical evidence: the tendency to read coercion or bias into any evidence that money has changed hands. 

One striking exchange took place between Justice Sotomayor and Williams-Yulee’s attorney.  Sotomayor pointed to statistics showing a higher effectiveness of personal solicitations versus committee-run solicitations and concluded that they demonstrated “some form of personal coercion” from personal solicitations.  As Justice Scalia stepped in to point out, it would be passing strange if a third-party solicitation worked better in any fundraising context, including the judiciary – coercion need not factor in at all.

Similarly, Florida’s attorney suggested that the disproportionate level of donations from attorneys in judicial races (as opposed to other citizens) could indicate corruption.  While that interpretation is possible, Justice Scalia pointed out the alternative and totally plausible interpretation that lawyers care more about the judiciary than the average Joe and therefore are more motivated to get involved in those races.

Both these cases illustrate why caution is necessary when drawing conclusions from statistics.  Without proper context and either rigorous statistical studies or a mind-reading machine, it’s easy for advocates to make mere numbers show far more than they’re worth.

In the end, the First Amendment rights of the judicial officer should win the day in this case. Fundraising in judicial elections is just as important for political speech as it is in typical campaigns. Once in office, judges obviously have the obligation to be fair and impartial between litigants that come before them, but any questions on that point can be ably addressed through typical legal norms without undermining the process of judicial selection itself.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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