NEWS RELEASE

 State Courts Respond to Supreme Court Ruling

Republican Party of Minnesota vs. White Decision

Williamsburg, VA (June 27, 2002) --

Today’s U. S. Supreme Court decision marks the first time the Court has clarified how to balance the First Amendment rights of candidates for judicial office to speak and the public to hear against the rights of litigants and of the public to a fair and impartial judiciary. The Supreme Court’s decision will serve as the foundation upon which the state courts will build to ensure that the judiciary fulfills its traditional function within our system of government. 

“What is at stake is the neutrality and independence of our nation’s judiciary, as well as the public’s trust and confidence in their courts,” said Roger K. Warren, president of the National Center for State Courts.  

“The question presented,” according to Justice Scalia’s majority opinion, “is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial elections … from announcing their views on disputed legal and political issues.” Five Justices answered “No,” with dissents by Justices Stevens and Ginsburg (joined by Justices Souter and Breyer.) 

Of crucial importance, all justices agreed that there is a “difference between judicial and legislative elections.” Justice Scalia wrote that “we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.” Further, Scalia continued that all states in which judges face elections “separately prohibit judicial candidates from making pledges or promises of conduct in office other than the faithful and impartial performance of duties of the office – a prohibition that is not challenged here and on which we express no view.” 

These statements are important because they make clear that the court leaves room for the states to fashion canons of campaign conduct that will satisfy both the First Amendment and the need, recognized by the Court, for steps to keep judicial campaigns judicious. For example, it is inconceivable that our nation would limit “pledges or promises” in non-judicial elections. Such steps are necessary to assure that judges “be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case,” Scalia wrote. 

It is notable that four justices adopted the view pressed in the amicus brief for the Conference of (State) Chief Justices, for which The National Center serves as association manager. Given that, and the explicit limitations in the majority’s opinion, the important work on safeguarding judicial open-mindedness and protecting the role of state courts continues. 

What Needs to be Done? 

For the past two years, the National Center for State Courts has been working aggressively to reform and improve the judicial election processes. That work continues.  Every effort will be made to assure appropriate judicial campaign conduct in order to preserve the courts’ impartiality and integrity in applying the law and basic constitutional values. 

The overwhelming majority of women and men who seek judicial office want to campaign in ways that do not compromise their performance on the bench.  Direct enforcement of proper campaign conduct through official regulation is just one mechanism for ensuring that judicial elections remain different from elections for other offices. Judicial election campaign oversight by unofficial and voluntary professional and citizen groups, as well as the voluntary commitment of judicial candidates to uphold proper campaign standards, now matter more than ever. Ultimately, expectations for appropriate candidate conduct rest on the public’s commitment to judicial independence, impartiality, open-mindedness, and professionalism. 

“Preserving a fair, impartial, and independent judiciary is essential to a democratic society. America’s system of government rests on an independent judicial branch that has responsibilities very different from those allocated to the executive and legislative branches. Regardless of how the balance is struck in a particular Supreme Court case, or with respect to a specific judicial canon, it is critical to preserve a fair, impartial and independent judiciary,” said Warren of The National Center. 

Through its working relationship with state chief justices and its research on judicial election reform the National Center this month presented a plan of action to the chief justices of the 39 states with judicial elections. Highlighted actions:  

·         Secure from all judicial candidates voluntary pledges to comply with state Canons of Judicial Conduct (based on the pledge currently used in New York State).

·         Establish judicial campaign conduct oversight committees, official and unofficial, that can moderate the tone of judicial elections and inform the public.  Seven states already have official or quasi-official committees:  Georgia, Louisiana, Mississippi, Nevada, Oklahoma and South Dakota; in addition, New York’s state bar responded to encouragement to create such committees in all counties.

·         Make available information and experienced judgment on the laws governing judicial campaign conduct.

·         Appoint a network of campaign watchers to document conduct occurring during the 2002 judicial elections and gather valuable information about lessons for subsequent election cycles.

History of Judicial Elections