Murphy's law

Unlike the orderly and predictable application of precedent within the judicial process, a campaign promise to vote a certain way in a future case is pre-judgment at its prejudicial worst. It is also beyond the scope of the judicial power, which only envisions deciding actual cases.



Similarly, the function of adjudicating cases is beyond the scope of a voter’s rights and powers. Even as the public may rightly use the polls to choose its judges, that public may not vote litigants up or down.



Within this perimeter, there are two basic postulates that define the right to vote for judges. First, that voters are capable of evaluating character, style, deportment, and general philosophy without a white-paper promising specific case rulings. Second, that trusting voters is a better way to the advance the principles of state democracy and separation of branches than other methods of judicial selection.



As a matter of law under our Constitution, voters are inherently competent to elect judges. Even when the public may appear to be apathetic and uninformed about the judiciary, it is still a “check and balance,” a force to be respected.



Campaign regulations, educational programs and even advisory evaluations of candidates may still be useful to ward off campaign influences that might distort the constitutional function of the judiciary.

A Background of Regulations

First Amendment rights of office seekers are broad but not absolute. The examples of restrictions are numerous, if sometimes nit-picky. Approved restrictions run from the straight-forward federal “Hatch Act,” limiting the campaign participation of most federal executive employees, to the maze of regulations that encumber campaign fund-raising. The usual test is whether the regulation narrowly serves a compelling state interest.



Common to states that elect judges are provisions, like the one in Republican Party of Minnesota and Canon 7(B)(1)(c), that prohibit candidates from announcing views on disputed issues of law. These restrictions appear on their face to affect the content of speech and therefore are destined to receive the closest scrutiny.



Ironically, these restrictions, designed to make candidates’ behavior fit the constitutional mold of the judicial role, have sometimes led to arguments for scrapping judicial elections completely. Because judge candidates can’t directly tell the voter how they will vote in specific types of cases, so the argument goes, voters have no basis for voting and judges should be appointed.



Campaigning on a platform of specific anticipated decisions not only exceeds the power of the judicial office sought, but appears to give voters a right to vote on cases, not judges. Some have argued that because Canon 7 keeps the public from knowing exactly how a judge intends to rule, the public is therefore incapable of electing judges at all. The scope of Canon 7, however, is not limited to public elections. The would-be judicial officer can never discuss future case rulings or preview specific disputed issues in order to attain judicial office.



The real issue is whether the ban on announcing decisions in a campaign meets First Amendment demands.



When Canon 7(B)(1)(c)-type regulations are put in context, the state interest appears very compelling indeed. On the one hand, the electorate was never entitled to decide cases, but rather to elect persons who show the attributes that it trusts in its wisdom would make a desirable judge. Limiting candidates from giving bottom lines to the electorate seems no more intrusive than prohibiting sitting judges from holding press conferences to announce a result before a case has been heard.

The Posture of Canon 7