First Amendment Lawyer BlogJudges Aren’t Politicians, High Court Says
Does someone who wants to be a judge have a First Amendment right to hit people up for campaign money?
Thankfully, the U. S. Supreme Court says “no,” in a 5-4 decision filed April 29. The Court’s split decision will hopefully keep the most unseemly aspects of money-raising out of judicial races in a way that its controversial Citizens United decision doesn’t for other campaigns.
Chief Justice John Roberts’ decision focused on the unique aspects of judging, reasoning, “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”
The Court’s decision in Williams-Yulee v. Florida Bar sparked a vigorous debate both inside and outside the Court on the nature of judging. Former California Supreme Court Justice Joseph Grodin — my boss when he was on that Court in the 1980s — cited Chief Justice Roberts’ statement during his confirmation hearings that a justice’s role is like an umpire calling balls and strikes, and said in the wake of the Williams-Yulee decision, “most judging takes place along a continuum between the poles of judge-as-referee and judge-as-legislator, a middle ground of tension that tends to resist simplistic metaphors.”
First Amendment lawyer Floyd Abrams, who was counsel to Senator Mitch McConnell in the Citizens United case, was critical of the Williams-Yulee decision, and asserted that the decision’s focus on the special role of judging “reinforces” the Citizens United decision.
I’m not so sure. While there are, to be sure, differences between judges and politicians, much of what Chief Justice Roberts says in defense of the Florida Bar’s rule restricting judicial candidates’ solicitations could also be said about other campaign finance restrictions. Chief Justice Roberts catalogues a number of ways judicial candidates can campaign without saying, “Please give me money.” The same can be said about the campaign finance restrictions the Court struck down in Citizens United: there were a number of ways candidates could get their message across without completely discarding any campaign finance restrictions and opening the door to the unlimited spending and “one dollar one vote” cesspool of super-PACs that has engulfed elections since Citizens United.
In the end, I think the majority got it right in Williams-Yulee. I only wish some of the Court’s reasoning about the importance of preserving public confidence in the integrity of the judiciary had been applied in Citizens United to the interest in, as Chief Justice Roberts called it, “preventing the appearance of corruption in legislative and executive elections.”