The Judicial Ethics Forum (JEF)

Judicial ethics scholar Dmitry Bam (Maine) has authored insightful works on judicial elections, disqualification, and Caperton.  He has graciously contributed this post, thoughtfully discussing both the significance and the insignificance of the Supreme Court’s Williams-Yulee opinion:

Imagine you are a plaintiff in a medical malpractice case. You are suing a prominent (and wealthy) local doctor and a local hospital. One of two potential judges will be assigned to hear your case. Both judges received campaign contributions from the doctor and from defense counsel. In addition, a pro-hospital/pro-doctor lobbying group had spent a significant amount of money to support both judges’ campaigns for office. Both judges, in the course of their campaigns, announced that they would “take on trial lawyers” and “the medical malpractice litigation run amok,” and both judges plan to run for office in a few years when their terms end.

But there is one difference between the two judges. In the course of his campaign, Judge #1 wrote and signed a letter to hundreds of lawyers, including defense counsel, personally asking for a contribution to support his campaign. Judge #2 talked to the same defense counsel in the course of her campaign, describing her views and positions on controversial legal issues, but rather than asking anyone for money directly, Judge #2 asked her campaign manager to contact potential contributors. Judge #2 also demanded that the campaign manager tell her immediately who contributes to her campaign and wrote thank you notes to those generous enough to contribute to her campaign.

If your first thought is “Boy, I hope I don’t get stuck with that first guy,” then yesterday’s Supreme Court decision in Williams-Yulee offers an important safeguard of judicial impartiality and its appearance. To the surprise of many experts, the Supreme Court upheld a First Amendment challenge to a Florida canon of judicial ethics prohibiting personal solicitation of campaign funds. The Court held that Florida has a compelling interest in preserving judicial impartiality (and the appearance of judicial impartiality), and the canon prohibiting personal solicitation is narrowly tailored to satisfy that interest. In other words, Florida, and the other 38 states that elect their judges, may have a rule in place prohibiting judges and judicial candidates from personally asking for campaign contributions.

But if, like me, your reaction is “These two judges are indistinguishable, at least when it comes to appearance of bias”, then the Williams-Yulee decision offers little comfort. After all, both judges are potentially biased in favor of the defense; both judges owe a debt of gratitude to the defendant and defense counsel; both judges will need to keep their contributors happy for the next time they run for office. And the difference between how they solicited the money that they received is beside the point.

Now, throughout the opinion, the Court talks the impartiality talk. Justice Roberts’s majority opinion highlights the importance of public perceptions to the judiciary, discusses the fundamental differences between the judicial and other political branches, and provides a strong defense of the need for judicial impartiality. Judges must “apply the law without fear or favor,” repeats Roberts throughout the opinion. Lofty words for a decision that makes so little difference when it comes to any of those things. The rhetoric is almost entirely detached from the minimal (perhaps nonexistent) protection of judicial impartiality created by this decision (or the Florida canon itself).

For example, the Court explains that “in deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors.” But we now know that is precisely what happens. Studies have shown that judges do favor the preferences of the electorate, and judges do give special consideration to their campaign donors. And it all happens whether or not judges solicit campaigns directly. The studies showing that elected judges are biased in favor of the political preferences of the electorate as well as their contributors identify a link between judicial contributions and judicial decisions, not judicial requests for contributions and judicial decisions. The Williams-Yulee decision, despite the majority’s paean to judicial impartiality, is no solution to the monumental problem of judicial bias in elected state courts.

The decision also does little (if anything) for appearance of judicial impartiality, despite the prominent role that appearances play in the Court’s analysis. A large majority of the public perceives judges who receive contributions from litigants and lawyers that appear in front of them to be biased, and will continue to perceive judges who receive such contributions to be biased. As Justice Scalia explains in dissent, “Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges.” Of course not, and that’s because while such direct personal requests make life more difficult for a lawyer (who must say “no” to a judge asking for money), it is not the requests that lead 80% of the public to question judicial impartiality. No, it is the contributions/expenditures themselves.

If the holding itself does nothing more than leave states with an impotent tool to fight an overwhelming problem, why am I blogging about it? Is there anything useful to take away from the Court’s decision? Maybe. The most important aspect of the decision, in my opinion, is that the court seems cognizant that standard electoral rules may not apply when it comes to electing our judges. Sure, the Court (or a plurality of the Court, since Justice Ginsburg does not join this part of the opinion) purports to apply strict scrutiny, but Justice Scalia is right that this is not the strict scrutiny of recent First Amendment cases like United States v. Stevens, United States v. Alvarez, Brown v. Entertainment Merchants Association, Snyder v. Phelps, or, most importantly, Republican Party of Minnesota v. White. In other words, Williams-Yulee may be a signal of how the Court will approach regulations of judicial elections that—outside the judicial election context—would run afoul of the First Amendment.

And it is Chief Justice Roberts who holds all the keys. Over a decade ago, in Republican Party of Minnesota v. White, the Court struck down Minnesota’s prohibition on judicial candidates announcing their views on legal issues likely to come before the judges if they win the election. Joining Justice Roberts’s Williams-Yulee opinion are four other justices, all of whom were either in the dissent in White, or would likely have been in dissent had they been on the Court a decade ago (Justices Kagan and Sotomayor replaced White dissenters Justices Stevens and Souter). But it took Chief Justice Roberts to turn a 4-justice dissent in White into a 5-justice majority in Williams-Yulee. Justice Roberts was not on the Court when the White case was decided, so we do not know how he would have voted, but the most important take-away from Williams-Yulee is that Justice Roberts may be more susceptible to regulation of judicial elections than his conservative colleagues on the Court.

Perhaps the court would allow a fund-matching public financing scheme for judicial elections, akin to the one it struck down in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Perhaps the Court would permit limits on independent expenditures—the kinds of limits that are thought to be unconstitutional under Buckley v. Valeo and Citizens United. Perhaps it would permit complete bans on contributions to judicial candidates by litigants and lawyers that are likely to appear in front of them? Until yesterday, all of these options seemed to be off the table. Today, they are perhaps a little closer to the table than we thought. Williams-Yulee offers a glimmer of hope that the Court will grant states some flexibility in regulating judicial elections—flexibility that states do not have when it comes to regulating money in legislative/executive elections.

Finally, the Court also seems cognizant that recusal is not the answer to election-related judicial bias. In White, Justice Kennedy’s concurrence explained that to the extent that judicial announcements create concerns about judicial bias, recusal can solve the problem. Similarly, five years ago in Caperton, recusal was once again offered as the solution to the problem of biased judges. But in Williams-Yulee, Justice Roberts acknowledges that recusal alone is not enough. “A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could ‘erode public confidence in judicial impartiality’ and thereby exacerbate the very appearance problem the State is trying to solve.”

In short, while I’m skeptical that Williams-Yulee itself makes much of a dent in the problem of biased elected judges, I am hopeful that the decision signals that the Court understands the scope of the problem. And if judicial elections are not going away any time soon (and they are not) and recusal is not the answer (and it is not), then our ability to preserve the rule of law and ensure judicial impartiality may hinge on the flexibility to regulate judicial elections that the Court will grant to states under the First Amendment. We will have to wait and see whether the Court is open to such an approach.