April 30, 2015

ARE ELECTED JUDGES POLITICIANS?:  According to the Supreme Court’s 5-4 decision yesterday in Williams-Yulee v. Florida Bar, the answer is “no.”  The Court’s 5-4 split is itself worth noting:  Chief Justice John Roberts– in a classic move he made in the case upholding Obamacare, NFIB v. Sebelius–joined the Court’s four liberal Justices (Ginsburg, Breyer, Kagan and Sotomayor) and wrote the majority opinion.  Eight Justices (all of them except Ginsburg) agreed that a Florida ban on judges soliciting campaign contributions was a presumptively unconstitutional violation of free speech under the First Amendment and subject to “strict scrutiny.”

Roberts’ majority concluded that banning judges’ solicitation of campaign contributions survived strict scrutiny because it furthered the compelling government interest in protecting judicial integrity and the public’s confidence therein, and was narrowly tailored to serve that interest. This integrity is essential, said the Roberts’ majority, because “judges are not politicians,” even when they are elected, and the public needs to have confidence that judges will decide cases impartially, without regard to who has given contributions to them.

But is this really true?  Judges in 39 states are elected in some manner.  In 30 of these states, elected judges are banned from soliciting direct campaign contributions.  In the Williams-Yulee case, for example, Ms. Williams-Yulee (who ran for a county court in Florida, but lost) sent out a mass mailing to potential supporters, signed it, and then posted the same letter on her website.  This triggered disciplinary proceedings by the Florida Bar, which resulted in her reprimand and payment of court costs of almost $2,000, which was affirmed by the Florida Supreme Court.

When we elect our judges, do we really think they aren’t politicians?  What is a “politician,” if not someone who is elected (and hence, politically accountable) to the people via elections?  I’m sure we all agree that judges (elected or not) should be impartial, and apply the law rather than make it up themselves.  But that aside, if we choose to elect our state judges (federal judges are constitutionally required to be appointed for life), doesn’t that mean that they are politicians, and that we want them to be politically accountable to us for their behavior while on the bench?

If elected judges are “politicians” in this sense, then why shouldn’t they have a robust First Amendment right to ask for campaign money, the same as elected members of the executive and legislative branches?  Indeed, under most states’ judicial solicitation bans, judges cannot even ask for campaign contributions from their own family members, though they can set up “campaign committees” that issue contribution solicitations indirectly.  They can even write personal “thank you” notes when such committees receive contributions.  As Adam Liptak observed in his New York Times summary, “Under Wednesday’s ruling, then, judicial candidates can say thank you, but they may not say please.”

Moreover, in most states, judicial candidates and judges can ask lawyers for other benefits, such as tickets to a football game, but they cannot ask for a $1.00 campaign donation.  These gaps and inconsistencies in judicial solicitation bans led Justice Samuel Alito to observe, in dissent, that Florida’s law was “about as narrowly tailored as a burlap bag.”

The four, dissenting conservative Justices in Williams-Yulee have a point:  The liberal Justices (plus Chief Justice Roberts) just don’t seem to like judicial elections very much, and seem to paternalistically justify protecting the “Brotherhood of the Robe” by claiming that citizens will somehow think elected judges raising money like other politicians will make them less partial than they otherwise would be.  Maybe this is because, when judges are elected, they tend to vote more conservatively.

Here in Florida, where our appellate judges are subject to retention elections, I assume simultaneously that judges are both “politicians” (politically accountable via elections) but also “impartial,” as the Code of Judicial Ethics requires them to be.  If I received a letter in the mail from some judge (or candidate) asking me for money, I would probably just chuckle and throw it in the trash.  If I gave money, it would be because I knew the person and believed him/her to be a good judge (or potential judge).  I certainly wouldn’t think I could “buy” a judge for the limited contribution allowed of $1,000- $3,000.

If contribution limits are accepted as an appropriate means for preventing members of the legislative and executive branches from being “bought,” then why aren’t they similarly accepted for elected judges?  According to the Williams-Yulee Court, it’s because judges are just “different.”  I don’t see how this distinction is supported by the First Amendment.

InstaPundit is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.