Judges and Judiciary
Aug. 17, 2002
Politicizing Judicial System
Forum Column - By Erwin Chemerinsky - Although many disagree about the First Amendment, no one denies that political speech is at the very core of what is constitutionally protected. Government-imposed content-based restrictions on the speech of political candidates, in virtually any circumstance, are unconstitutional. Such speech provides the voters with crucial information to evaluate candidates and, thus, directly furthers the democratic process.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Although many disagree about the First Amendment, no one denies that political speech is at the very core of what is constitutionally protected. Government-imposed content-based restrictions on the speech of political candidates, in virtually any circumstance, are unconstitutional. Such speech provides the voters with crucial information to evaluate candidates and, thus, directly furthers the democratic process.
I, thus, have long believed that the American Bar Association Code of Judicial Conduct's restrictions on speech by candidates for judicial office are clearly unconstitutional under basic First Amendment principles. The laws are content-based restrictions on political speech. I, therefore, applaud the Supreme Court's recent decision in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002).
The court, in a 5-4 decision, invalidated a state law that prohibited candidates for judicial office from announcing their views on disputed legal or political issues. The government should not be allowed to keep candidates for elected office, including judgeships, from discussing issues related to the voters' choice.
Interestingly, the majority comprised the five most conservative justices: Justice Antonin Scalia wrote the opinion for the court, which was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy and Clarence Thomas. The four more moderate justices - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - rejected the First Amendment challenge and would have upheld the Minnesota law.
This illustrates a trend increasingly evident in First Amendment cases: The conservative justices are as likely, and often more willing, to rule in favor of free speech claims than their more liberal colleagues.
Judicial elections are inherently problematic. Voters rarely know enough about judicial candidates to make a knowledgeable choice. There is an intrinsic tension between judicial elections and judicial independence; inevitably, the likely impact at the next election might influence judges in deciding cases.
But 41 states have some form of judicial election, ranging from partisan elections to retention elections. In these states, judicial candidates must be able to inform the voters of their views.
An individual's views affect how he or she acts on the bench. As every lawyer knows, judges often have discretion in deciding the content of legal rules and in applying them to specific cases. Of course, there are many cases where any judge would come to the same conclusion. But that does not deny that discretion is inherent to judging. The beliefs and views of a judge inevitably influence how that discretion will be exercised.
The restrictions on speech in the Code of Judicial Conduct, like the provision struck down in White, prevent judicial candidates from expressing their views and voters from learning of them. The limits are, thus, a content-based restriction on political speech and, as the Supreme Court said, can be allowed only if strict scrutiny is met.
The state of Minnesota argued to the Supreme Court that the restrictions on the speech of judicial candidates were justified by the need to preserve the appearance of impartiality for judges. Unquestionably, this is a compelling government interest.
But it is highly questionable whether allowing judicial candidates to express their views undermines this goal. All judges come to the bench with views about important issues, whether or not they have expressed these views during the election campaign or the confirmation process. It is purely speculative whether, having expressed his or her views, the judge is more likely to decide based on them than if the judge has the same views but has not voiced them.
Perhaps the public commitment solidifies the views and causes a greater likelihood that they will be the basis for the decision. Or maybe the judicial role will be so powerful that the judge will decide the case differently because he or she wants to show impartiality. Or, as I think most likely, the judge usually would do exactly the same thing whether or not he or she previously expressed the position.
More important, it is not at all clear what expression is enough to make a judge impermissibly appear to be biased. Does a judge lack impartiality if the judge has decided several similar cases in a particular direction and it is clear from those cases how this case will be resolved? If the judge has written a judicial opinion expressing views on exactly the issue pending, does that make the judge appear impermissibly biased? If the judge's ideology makes a result highly likely, does that violate the need for the appearance of impartiality?
These situations occur all the time, and I never have heard anyone suggest that they violate due process. I cannot imagine a credible argument that Scalia's sitting on abortion cases violates due process, even though it is absolutely clear how he will vote when the issue of whether the court should overrule Roe v. Wade comes up.
Certainly, it is distressing to think of judicial candidates appealing to voters with commercials stating their opposition to abortion rights or their desire to impose the death penalty. But the simple reality is that judicial elections make judges and judicial candidates into politicians. As politicians, they enjoy the protection of the First Amendment for their right to express their views. Voters should be able to hear judges' views in deciding how to cast their ballots. If this is objectionable, the solution should be to reconsider electing judges, not to silence the messengers.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
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