Is "Republican for judge" problematic?

Photographer: Erich Schlegel/Getty Images

Don't Muzzle Judicial Candidates on Politics

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Just about the only thing dumber than judicial elections is trying to regulate what judges can say when they’re running for office. Last year, the Supreme Court struggled with this problem in a case about judicial fundraising. Now an appeals court has struck down elements of Kentucky’s nonpartisan judicial election rules that try to regulate how judges can talk about party affiliation.

The court came up with a good general principle -- namely, that states can’t try and have it both ways, staging judicial elections while barring candidates from explaining why they should be elected. But the principle should be taken even further: If states choose judicial elections, then the First Amendment should require them to let those candidates speak freely, exactly like anyone else running for office.

Some 39 states have judicial elections. The practice has a venerable history in the U.S., as law professor Jed Shugerman has shown. But the perennial appeal of the idea that judges should be responsible to public opinion doesn’t make the notion any more coherent.

To put it simply, there’s a basic contradiction between asking judges to decide cases on the basis of law and conscience and making them put themselves up to a vote to remain in office. One vision calls for judicial independence. The other calls for judicial responsiveness. The two can’t coexist without creating major problems for defining the judicial role.

The contradiction manifests itself especially sharply when it comes to the regulation of judicial elections. Ordinarily, running for office is treated as ground zero for free speech. The archetypal purpose of the First Amendment is to enable free exchange of political ideas and influence the public’s electoral decisions.

But when it comes to judges, states want to limit what candidates for office can say or do. Florida, for example, prohibits judges from soliciting campaign contributions, which would be constitutionally protected speech for ordinary politicians. In 2015, a divided Supreme Court upheld Florida’s rule by a vote of 5-4.

The court’s four liberals voted to uphold the law. The decisive vote (and the opinion) came from Chief Justice John Roberts, who reasoned that it was permissible for Florida to limit solicitation by judicial candidates in order to avoid the appearance of impropriety and preserve the integrity of the judiciary. Given that Roberts thinks that avoiding the appearance of corruption isn’t sufficient reason to bar unlimited campaign contributions by super-PACs, his rationale shows that he thinks that judges must be special.

The Kentucky regulations struck down by the 6th Circuit U.S. Court of Appeals included one saying that a judge can’t campaign “as a member of a political organization” and one barring judicial candidates from making speeches “for or against a political organization or candidate.”

The appeals court, in an opinion by widely respected Judge Jeffrey Sutton, acknowledged that Kentucky has the right to make its judicial elections officially nonpartisan. The court said that in principle, it’s fine for Kentucky to say that a judicial candidate may not identify as the nominee of a particular party. But the court objected to the vagueness of Kentucky’s rule against campaigning “as a member,” noting for example that it wasn’t clear whether the rule prohibited describing oneself as “the moderate Republican candidate.”

As for the rule against giving speeches with partisan content, the court said it was also too broad, because judicial candidates are allowed to state in writing or on Twitter that they are Republican or Democratic.

The best part of the Sutton’s opinion was his attempt to derive a general principle that would explain when restrictions on judicial speech are permitted. The key, he argued, was that a state can’t have it both ways: it “may not hold judicial elections, then prevent candidates from explaining what makes them qualified for that office.”

This logic enabled the court to uphold several other Kentucky provisions, including bans on judges making campaign contributions to other candidates or endorsing their campaigns. Sutton reasoned that these bans don’t affect judicial candidates’ efforts to explain why they should be elected.

But Sutton’s principle, I think, actually goes much further than he allowed. Running for office doesn’t just include explaining why you should get elected. It includes the full panoply of free-speech elements that make our political system operate. That includes mutual endorsements and even contributions to other candidates, which the Supreme Court ordinarily considers to be constitutionally protected.

In other words, any restrictions on what judicial candidates can say or do puts them in what Sutton correctly called a “push-me-pull-me” bind. The state is requiring them to act as politicians while simultaneously trying to stop them from acting politically.

The 6th Circuit’s holdings in the same case on false and misleading statements is a good example of the absurdity of the contradiction. The court said that Kentucky could ban campaigning judges’ false statements but not misleading ones.  Yet the 6th Circuit this past February correctly struck down an Ohio law that prohibited ordinary candidates from making false statements. It makes no sense to hold judges to a higher standard with respect to falsehood while finding that they have constitutional protection to make statements that are merely misleading.

To be sure, this mess is the Supreme Court’s fault, not the 6th Circuit’s. In the long run, the only solution that will protect free speech is to allow campaigning judges the same latitude as other politicians. It’s either that, or sober up and get rid of judicial elections altogether.

  1. I thought –- and still think -- that the justices really saw the case as one about campaign finance more broadly.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Tracy Walsh at twalsh67@bloomberg.net