Judges and Judiciary
Aug. 10, 2002
'White' Could Strengthen Independence of Judiciary
Forum Column - By Beong-Soo Kim - Many greeted the Supreme Court's decision last term striking down a Minnesota rule prohibiting judicial candidates from "announcing" their views on disputed legal issues as a victory for free speech. But even supporters of the court's 5-4 decision in Republican Party of Minnesota v. White , 122 S.Ct. 2528 (2002), worried about the impact that the decision would have on judicial independence.
By Beong-Soo Kim
Many greeted the Supreme Court's decision last term striking down a Minnesota rule prohibiting judicial candidates from "announcing" their views on disputed legal issues as a victory for free speech. But even supporters of the court's 5-4 decision in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002), worried about the impact that the decision would have on judicial independence.
Indeed, two members of the court's majority - Justices Sandra Day O'Connor and Anthony Kennedy - wrote concurrences expressing those concerns even more eloquently than did the dissenters.
White likely will lead to the invalidation of similar judicial canons in other states, including California, but it is by no means destined to undermine the public's respect for its state judiciaries. Indeed, by recognizing the pressures faced by state court judges today, the opinion could spur reforms that not only protect the free speech rights of judicial candidates but also strengthen judicial independence.
White arose from declaratory action filed by a Minnesota Supreme Court candidate who claimed that Minnesota's rule prohibiting a judicial candidate from "announc[ing] his or her views on disputed legal or political issues" violated the First Amendment. The Minnesota Supreme Court had promulgated this rule, known as the "announce clause," in 1974.
The Supreme Court held that the announce clause was facially invalid. Applying strict scrutiny, the court concluded that the clause was not narrowly tailored to further Minnesota's interest in preventing bias against particular parties and, at the same time, was "woefully underinclusive" in serving the state's interest in judicial "openmindedness."
But perhaps even more damning in the court's eyes was the incongruity of a state's holding judicial elections while "preventing candidates from discussing what the elections are about." The court held that states could not have it both ways: "If the State chooses to tap the energy and legitimizing power of the democratic process, it must accord the participants in that process ... the First Amendment rights that attach to their roles."
Unresolved after White is the fate of similar judicial canons in other states, including California. Although canons identical to Minnesota's almost certainly are invalidated by the decision, most of the 39 states that regulate judicial candidates' speech have a modified version of the announce clause.
California's provision, for example - Canon 5B of the Code of Judicial Ethics - is targeted only at statements "that commit or appear to commit a candidate" and is expressly limited to issues or cases "that could come before the courts."
Although the court expressly declined to consider the constitutionality of modified provisions like Canon 5B, the court's opinion strongly suggests that, at least in the absence of a substantial narrowing construction, these provisions do not pass constitutional muster.
The first difference between the announce clause and Canon 5B - Canon 5B's limitation to issues "that could come before the courts" - was in fact read into the Minnesota provision that the court struck down. The court disparaged that saving construction as being "not much of a limitation at all," reasoning that hardly any issue was likely to arise during an election that was unlikely to come before a candidate after taking the bench.
Nor is Canon 5B's applicability only to statements that "commit or appear to commit a candidate" likely to save it. On the one hand, a "commitment" is similar to language in other canons prohibiting candidates from making "pledges or promises" - language that the court hinted might still be valid after its ruling.
But the court in White also noted that, before their arrival on the bench, "judges have often committed themselves on legal issues that they must later rule on." Canon 5B's prohibition of statements committing a candidate after declaring his or her candidacy, but not the day before, appears to run into the same underinclusiveness problem as suffered by the announce clause. And Canon 5B's inclusion of statements that "appear" to commit the candidate could make it even broader than the announce clause, as well as unconstitutionally vague.
The more difficult question raised by White is what practical effect the invalidation of these state canons will have on judicial elections and judicial independence in general. Some commentators have predicted that the decision will invite more money to flow into judicial elections, as added pressure is placed on candidates to take positions tailored to particular constituencies.
These are serious problems, but it is a leap to conclude that White will make them worse. As Kennedy wisely pointed out in his concurrence, the invalidity of the announce clause does not mean that nongovernmental groups - including the bar, the press and the legal academy - may not enforce informal norms about what is not appropriate for judicial candidates to say.
Indeed, since White was decided, local bar associations in New York, Ohio and other states have been doing precisely that by encouraging judicial candidates to sign pledges not to discuss matters likely to come before them as judges. These efforts have the potential to fill any gap left by White.
But whatever the outcome of these voluntary efforts, the court's opinion reminds us of more serious threats to judicial independence than errant campaign speech. Although White can be criticized for undervaluing the importance of judicial autonomy, the court's opinion offers a more candid assessment than do the dissenters of the intense pressures exerted on state judges.
As the court observed, "elected judges - regardless of whether they have announced any views beforehand - always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench."
That observation serves as a reminder that judicial independence is not a goal that judges can be expected to achieve entirely by themselves. It is we, after all, who decide how judges in our state are selected, determine the lengths of their terms, decide how to criticize their decisions, set their salaries and control how their elections should be financed.
Whether the challenges presented by these difficult issues can be met remains to be seen. But whatever progress is made, these issues are for us, not the Supreme Court, to decide.
Beong-Soo Kim is an attorney at the law firm of Munger, Tolles & Olson.
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