Civic-minded, otherwise well-informed citizens often turn, mystified, to lawyers for guidance on how to vote in judicial races. This article attempts to assist attorneys, as officers of the court, in articulating to the public the values and goals behind judicial campaign ethics in a state where we elect the non-majoritarian branch of government.
Although most judges in Washington are elected, they play a different role than elected officials in the legislative or executive branches. While it is reasonable to expect a legislator or executive to pledge allegiance in advance to their constituents, or to promise to achieve certain outcomes in office, such promises from a judicial candidate would be ethically wrong. This state of affairs leaves the voters with a dearth of information about why they should select one judicial candidate over another and - possibly worse - can diminish confidence in a system whose key protagonists are essentially mysterious.
Don't Ask, Won't Tell
Judges are supposed to apply the law neutrally and even-handedly to all who come before them with a controversy to be settled. They must accept evidence and arguments under a set of established legal rules and not be pre-disposed to a given side or argument. Judges are supposed to maintain an open mind and not reach their conclusions until the evidence and arguments have been presented by all sides of a controversy.
To enhance our confidence in the fairness of their decisions, judges step aside from hearing matters in which they either have a stake or even appear to have a stake. The fundamental job of judges is to fully and fairly hear a controversy and to decide it on its merits, in accordance with precedent. They cannot do that if they have promised in advance how they will rule.
Indebted to None
As with all elections, judicial campaigns cost money. To maintain confidence in the integrity of our courts, judges must be clear of even the suggestion of being influenced by who does or does not contribute to them.
Since judges make decisions that affect people in the most important areas of their lives, they wield a great deal of power. It must be clear that judges are not exerting pressure through their positions to maintain or win their seats. Conversely, it must be clear that judges are not financially beholden to those who come before them in a manner that might influence their decisions.
No-Party Line
Judicial elections in Washington are constitutionally nonpartisan. Ideally, judges are selected for their ability to objectively apply the law equally to all those who appear before them. By analogy, in sports we wish our referees and umpires to be knowledgeable in the rules of the game, but neutral as to the outcome.1
Judges, Not Politicians
The protection of the independence of the judiciary from the pressures of powerful government or popular forces was one of the foundational principles of Article III of the U.S. Constitution. One of the problems that the Declaration of Independence protested was that King George "has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." Solutions were found in the lifetime appointment of the federal judiciary and the election of the judiciary in the majority of states. Washington, one of the most populist states in the nation, has a strong tradition of electing a high number of even apolitical public servants, such as judges, secretaries of state and coroners.
The tensions between judicial independence and the reality of electoral politics contains inherent contradictions that are manifest in the U.S. Supreme Court case of Minnesota v. White,2 which struck down as unconstitutional Minnesota's judicial campaign restriction called the "announce clause," which prohibited a judicial candidate from "announcing his or her views on disputed legal or political issues." (See Page 19 for more on the White case.) The multiple dissenting and concurring opinions filed by the justices in White reflect the ongoing tensions in relying on a political process to select an apolitical judiciary.
The Rules
The special ethics rules that govern the conduct of judges in their campaigns are an attempt to reflect and protect judicial independence, and to enhance the values of neutrality, evenhandedness and the basic fairness that is the fundamental component of the American public's expectations of a justice system, all within an election system that requires judicial candidates to raise money and persuade people to vote for them:
Neutrality:3 Judges may not act as leaders or hold offices in political organizations, nor identify themselves as members of a political party, except as necessary to vote in an election.
Judges may not make speeches for political organizations, publicly endorse nonjudicial candidates for political office nor make contributions to political organizations or nonjudicial candidates.
But: During judicial campaigns, judges may attend political gatherings to speak on their own behalf or that of another judicial candidate.
Open-mindedness:4 Judges should not make pledges or promises in office other than the faithful and impartial performance of the duties of the office. Judges should not make statements that commit or appear to commit the candidate with respect to cases that are likely to come before the court.
Integrity:5 Judges should not directly solicit funds or seek endorsements, although they may form campaign committees that may obtain such support for them.
Values
The job of a judge as a nonpartisan, neutral arbiter ruling without fear or favor under a set of precedents consistently applied, not motivated to achieve a given result, is antithetical to the norms of electoral politics. It is not possible to completely reconcile the tensions between the demands of electoral politics and the values of a truly independent judiciary. It may be helpful, however, to play a role as attorneys in explaining the values that judicial ethics rules seek to preserve, as our fellow citizens engage in the selection of our state's judiciary.
Reiko Callner is the executive director of the Washington State Commission on Judicial Conduct and has worked for the agency in various capacities since 1997. She is a member of the national board of the Association of Judicial Disciplinary Counsel. The Commission on Judicial Conduct is the state agency charged with enforcement of judicial ethics in Washington. It maintains a Web site at www.cjc.state.wa.us. The Ethics Advisory Committee is formed by the state Supreme Court to provide ethics advisory opinions to judges. Its Web site is http://www.courts.wa.gov/ethics/.
1 With thanks to Robert Alsdorf and his excellent article, The Sound of Silence, Hastings Constitutional Law Quarterly, Vol. 30, No. 2, August 2003.
2 536 U.S. 765; 122 S. Ct. 2528; 153 L.Ed.2d 694 (2002).
3 Washington Code of Judicial Conduct Canon 7(A).
4 Washington Code of Judicial Conduct Canon 7(B).
5 Washington Code of Judicial Conduct Canon 7(B).
