Regulating Judicial Elections
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Regulating Judicial Elections

Assessing State Codes of Judicial Conduct

C. Scott Peters

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Regulating Judicial Elections

Assessing State Codes of Judicial Conduct

C. Scott Peters

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About This Book

State judicial elections are governed by a unique set of rules that enforce longstanding norms of judicial independence by limiting how judicial candidates campaign. These rules have been a key part of recent debates over judicial elections and have been the subject of several U.S. Supreme Court cases.

Regulating Judicial Elections provides the first accounting of the efficacy and consequences of such rules. C. Scott Peters re-frames debates over judicial elections by shifting away from all-or-nothing claims about threats to judicial independence and focusing instead on the trade-offs inherent in our checks and balances system. In doing so, he is able to examine the costs and benefits of state ethical restrictions. Peters finds that while some parts of state codes of conduct achieve their desired goals, others may backfire and increase the politicization of judicial elections. Moreover, modest gains in the protection of independence come at the expense of the effectiveness of elections as accountability mechanisms. These empirical findings will inform ongoing normative debates about judicial elections.

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Publisher
Routledge
Year
2017
ISBN
9781317226413

1
Campaigning for Justice

Introduction

Although federal judges enjoy lifetime tenure, the vast majority of state judges face the electorate at some point. Forty states require judges on their highest court to face the electorate to gain or retain their seat on the bench, and in 22 of those states candidates run against one another in either partisan or nonpartisan elections (American Judicature Society 2013). These elections are governed by a set of electoral rules unique to American electoral politics—state codes of judicial conduct—which in the interest of promoting the independence, impartiality, and integrity of the courts, constrain what judicial candidates can say while campaigning, how they may interact with political organizations, and how they may participate in fund-raising. In 2002, the Supreme Court in Republican Party of Minnesota v. White ruled that one of these canons of ethics violated the First Amendment right to free speech. A handful of lower court decisions have gone on to question the constitutionality of other restrictions within these codes of conduct, but most of them remain in place and continue to govern candidate behavior in judicial elections. Led by the American Bar Association (ABA), which developed and regularly revises a Model Judicial Code of Conduct, states regularly update their own canons of ethics; many states have also drafted new canons in response to White, either by rephrasing existing limitations or by requiring recusal in instances where a judge’s impartiality or integrity might be questioned due to statements or behavior during campaigns. In some states, new mechanisms outside of formal codes of conduct have also arisen to encourage candidates to respect norms of impartiality during campaigns. Informal watchdog groups called state judicial campaign conduct committees (JCCCs) have been created for the purpose of encouraging candidates to hew closely to the canons of ethics during campaigns. In some cases these groups are empowered to publicly shame or sanction candidates who fail to do so.
Neither these rules nor the norms they enforce are new. In fact, they stem from traditional conceptions of judicial independence that are widely accepted within the legal community. Such rules have been in place since the creation of the first codes of conduct nearly a century ago. Their endurance even in the face of legal challenges speaks to the strength of the norms that dominate the legal community. Given the strength of these norms, it is probably no coincidence that the search for new mechanisms to enforce these norms is taking place in a context of particularly expensive and competitive supreme court elections in many states. Many reform groups, professional associations, and scholars have asserted that such trends threaten the integrity, impartiality, and independence of the court system by increasing political pressure on judges (see, e.g., American Bar Association 2003; Goldberg, Holman, and Sanchez 2002; Goldberg and Sanchez 2002; Goldberg, Samis, Bender, and Weiss 2005; Sample, Jones, and Weiss 2007; Sample, Skaggs, Blitzer, and Casey 2010; Burnett 2007; Brandenburg and Schot-land 2008; Pozen 2011), and some of them have argued that White is at least partly to blame for what they see as a breakdown in well-established norms governing judicial elections (see, e.g., Goldberg et al. 2005; Burnett 2007; Brandenburg and Schotland 2008; Schotland 2003).
This book examines the effects of these ethical rules on state supreme court elections. The normative debate over how the legal community should respond to these trends has often included claims by Traditionalists about the importance of the canons of ethics. This is especially true since White, which many in the legal community viewed as a decision that would undermine and endanger the effectiveness of codes of conduct. In the aftermath of White, one common criticism of the U.S. Supreme Court was that its decision had helped to unleash a new era of politicized judicial elections in the states. Such debates, however, have taken place without any real knowledge about how effective such regulations are in the first place, pre- or post-White. Despite the amount of debate generated by the White decision, very little empirical research has sought to test the effects of state codes of judicial conduct on judicial elections. This book fills that empirical gap, and it also contributes to a longtime and lively normative debate about whether judicial elections are compatible with norms of judicial independence.
Building upon recent theoretical work on judicial independence and impartiality, I argue that the tendency to view judicial independence using the federal system as a model—i.e., through a traditional, Hamiltonian lens—has hampered both normative debates about how to protect judicial independence and empirical examinations about the effectiveness of the variety of independence-promoting mechanisms that different political systems adopt. I consult recent legal scholarship on judicial independence to show that independence and accountability are both crucial to protecting the rule of law and suggest that many mechanisms are available to enforce them. I also rely upon the extensive body of empirical literature on elections, especially what we know about the importance of information in elections, to hypothesize that some of the restrictions relied upon to promote independence may not only interfere with judicial accountability, but may also be counterproductive to the ultimate goal of judicial independence: protection of the rule of law. In short, I argue that rules and norms to promote independence and impartiality have both benefits and costs and that empirical evaluation of both is vital to an informed normative debate about what rules we should adopt.
To test the effects of the electoral rules meant to protect independence and impartiality, I use an extensive data set that combines newly collected data on state codes of judicial conduct with data on television advertising in state supreme court campaigns, candidate characteristics, and election results. I test the effects of electoral rules and norms on the content of candidate advertising, the involvement of interest groups, and the competitiveness of campaigns. Thus, this book provides the fullest accounting to date of the efficacy and consequences of state efforts to protect judicial independence in judicial elections.
In the remainder of this chapter, I provide some context for the analysis by briefly describing what state supreme court elections look like today. To get a sense of this, I start by highlighting events in one state, Wisconsin, where electoral politics has very publicly affected the inner workings of the state’s highest court. Though admittedly an extreme example, Wisconsin’s experience is useful to explore because it illustrates the fears of opponents of judicial elections and also highlights the various rules that have been adopted to try to quell those fears and protect judicial independence against the pressures of electoral politics.

Electoral Politics and the Wisconsin Supreme Court

For many, the Wisconsin supreme court represents a cautionary tale about the effects of electoral politics on the independence, impartiality, and integrity of the judiciary. Although nonpartisan, elections for the Wisconsin high court have been competitive for some time and have often had highly ideological partisan undercurrents. Moreover, the politics of those elections often appear to manifest themselves in the internal politics of the court. As far back as the 1990s, for example, several justices attempted to oust Chief Justice Shirley Abraham-son by recruiting a candidate to run against her (Marley 2011). Since the 2008 election between incumbent Justice Louis Butler and Michael Gableman, any line that may have once existed between the polarized electoral politics and the court’s equally polarized internal workings has become blurred, if not wiped out entirely, in a haze of allegations of improper campaigning, ethical lapses, political pressure, rules changes, and even physical assaults.
The 2008 Butler-Gableman election was notable for its heated rhetoric and high levels of campaign spending. The watchdog group Justice at Stake (JAS) estimated that more money was spent on television advertising in Wisconsin than in any other judicial election in 2008 (Brennan Center for Justice 2011). One ad in particular gained notoriety. Attempting to portray Butler as soft on crime, a Gableman-sponsored ad claimed that Butler “worked to put criminals on the street,” and that he once “found a loophole” that allowed a child molester to go free. The ad omitted the fact that in the case in question, Louis Butler was a public defender representing a client, not a judge overseeing a trial (Marley, Walters, and Forster 2008).
The 2011 election was perhaps even more heated, as it came in the midst of a statewide political controversy that had garnered significant national attention. In February 2011, the Republican-controlled Wisconsin legislature passed a “budget repair bill” that significantly curtailed the collective bargaining rights of public employees. The law was immediately challenged in court, and it was clear to all observers that the case would ultimately be resolved by the state’s high court. At the time, the Wisconsin supreme court was controlled by a slim 4–3 conservative majority, with one member of that majority, David Prosser, up for reelection in April. With Wisconsin becoming ground zero in a national battle over the rights of organized labor and with partisan control of the state’s high court up for grabs, unions and corporate interest groups poured millions into the race. During the campaign, challenger Joanne Kloppenburg zeroed in on comments made by a Prosser spokesman that a Prosser victory would “protect the conservative judicial majority and [act] as a common sense complement” to both the recently elected Republican governor and Republican-controlled legislature (Prosser Campaign Press Release 2010). Although Prosser disavowed his spokesperson’s comments, Kloppenburg stressed during a debate that, in contrast to Prosser, she would remain impartial and would move the court “away from partisan and personal quarrels” (Associated Press 2011). Prosser was declared the winner by a narrow margin of about 7,000 votes after a lengthy recount (Stein and Walker 2011), and a week later the Wisconsin supreme court heard oral arguments on the challenge to the budget repair bill. Eight days later, on June 14, the court reinstated the law, which had been stayed by a lower court’s ruling. Justices Prosser, Gableman, Roggensack, and Ziegler voted with the majority, while Chief Justice Abrahamson and Justices Bradley and Crooks dissented. Abrahamson singled out Prosser’s opinion as having a “partisan slant” and accused the majority of rushing to a judgment for partisan political reasons. Subsequent press reports detailed deliberations on the case that grew physical when Justice Prosser placed his hands around Justice Ann Walsh Bradley’s neck (Lueders 2011).
The Wisconsin supreme court continues to be at the center of political controversies within the state. Most recently, in 2015 the Republican-controlled legislature referred to the state’s voters a constitutional amendment to alter the way the court’s chief justice was chosen, changing it from a position determined by seniority to one chosen by the justices themselves. Upon its approval by the voters, the court quickly elected a conservative justice to the chief justice position despite a pending lawsuit in federal court challenging the amendment (Marley 2015), ousting Abrahamson from her long-held position.

Campaigning to Be an Impartial Judge

If the events described had happened in connection with elections for state legislature or for governor, none of them would be too remarkable. High-stakes elections happen, especially in a body where partisan control may be on the line. From time to time, special elections may determine the balance of power in a legislative body, and therefore draw extra attention from interest groups much as the Prosser/Kloppenburg race did in Wisconsin.1 Members of legislative bodies often help members of their party campaign against their fellow incumbents, as the Wisconsin justices did. Majority parties regularly fashion rules that make it easier for them to pass their agendas, and votes over such rules changes tend to break down by party lines. Rhetoric within legislative bodies and on the campaign trail sometimes gets heated, and it is not unheard of for political adversaries to exchange insults and sharp language. Candidates often make statements during campaigns that their opponents claim are inaccurate or misleading. Candidates for the legislature are expected to speak out on issues and stake out specific policy positions and then vote consistently with those position statements once elected. Finally, candidates raise money from donors—often from donors who expect the candidate to behave in a particular way if they win. Links between sharp-elbowed, hotly contested elections and the subsequent decisions made by those who win elections is standard, even expected, in representative government.
What makes the Wisconsin case fascinating is that it happened in the context of the courts, where this style of politics clashes with widespread perceptions of the judicial role. Because we expect judges to remain impartial arbiters in disputes, the legal profession has developed strong norms of judicial neutrality and created ways to enforce those norms. These rules encourage judges to resist actions that could call into question their independence, impartiality, and integrity. State codes of judicial conduct, influenced by the dominant norms of the profession embodied in the ABA’s Model Code of Judicial Conduct, typically include a section devoted to political activities, and in nearly every state that has judicial elections, this section includes rules that govern candidates running in them. These canons of ethics relating to political activities constitute a set of regulations on judicial campaigns that are unique in American electoral politics, rules that restrict how judicial candidates communicate with voters, interact with political organizations (including political parties), and solicit campaign contributions.
Like most other states, Wisconsin regulates its judicial candidates in these ways. The Wisconsin Code of Judicial Conduct specifies that
A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
(Wisconsin Code of Judicial Conduct, SCR 60.06 (3) (b))
Wisconsin also prohibits judges from
knowingly or with reckless disregard for the statement’s truth or falsity misrepresent[ing] the identity, qualifications, present position or other facts concerning the candidate or an opponent” and from making statements that “are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.
(Wisconsin Code of Judicial Conduct, SCR 60.06 (3)(c))
The rules further prohibit judges or judicial candidates from being members of a political party, from participating in party caucuses or conventions, from raising funds on behalf of parties, or from endorsing party candidates or platforms (Wisconsin Code of Judicial Conduct, SCR 60.06 (2)(b)).
Thus, whereas the events in Wisconsin detailed earlier would merit only press coverage and posts on social media if they happened in the context of legislative politics, because they were judicial elections they led to a series of ethics charges and court hearings. And since these ethics codes are enforced by the state’s highest court, the justices found themselves wrestling with how to apply these codes to their own colleagues.
Several months after the 2008 election, the Wisconsin Judicial Commission brought charges against Justice Gableman, alleging that he had violated the Wisconsin Code of Judicial Conduct by knowingly misrepresenting facts about his opponent in the television ad mentioned earlier that led many viewers to think that Justice Butler was involved in the criminal case as a judge rather than as a criminal defense attorney. Further, attorneys for nine criminal defendants petitioned the Wisconsin supreme court to remove Justice Gableman from their cases because of campaign statements that they claimed called his impartiality into question. One petition cited more than a dozen press releases, claims by campaign spokespeople, statements by the candidate himself, and several claims made by independent supporters as demonstrating an “actual or apparent bias in favor of the state and against those accused of crimes” (State of Wisconsin v. Allen, motion for recusal).
Both of these challenges to Justice Gableman’s conduct as a judicial candidate would end up before his court. With Gableman recusing himself in these matters, the Wisconsin supreme court deadlocked. It was unable to come to a clear ruling about the speech restrictions (Stein 2010; Wisconsin Judicial Commission v. Gableman 2010), and therefore the ethics charges against Gableman stalled. The justices split similarly on the recusal motions, with three voting to deny the motions and three voting to solicit briefs and schedule oral arguments (Wisconsin Law Journal 2010; State of Wisconsin v. Allen 2010).
The fallout continued from there. Concerned about the high levels of spending in the 2008 race, the League of Women Voters asked the supreme court to amend the state’s Code of Judicial Conduct to require recusal when any judge received campaign donations of $1,000 or more from a party or attorney involved in the case. The court, by a 4–3 vote, rejected the League’s request and instead instituted new rules stating that mere receipt of campaign contributions or support from independent groups cannot be grounds for mandatory recusal, even if the money or support came from a party in the lawsuit (In the Matter of Amendment of the Code of Judicial Conduct’s Rules on Recusal 2010). This calls attention to another interesting feature of codes of judicial conduct: they are typically adopted by the state’s highest court, acting as the administrative head of the state judicial branch; in most states disciplinary procedures are also pursued through the judicial system.
The 2011 reelection of Justice Prosser and the controversy over the budget repair bill also led to allegations of ethical lapses connected to campaigning. During the Prosser/Kloppenburg campaign, a news story highlighted internal strife on the court by reporting that during its debates over the ethical charges against Gableman, Justice David Prosser had a he...

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