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At the beginning of the American Revolution, it was not unusual for militia units — especially in New England — to elect their own officers. As each town and village mustered its troops, it must have seemed natural for local civic and political leaders to be chosen company commanders. Later, when the hastily formed companies merged into larger regiments, they often elected their regimental officers as well. Certainly, this approach was preferable to the hated British system of inherited rank. How could the “Sons of Liberty” rely on anything other than elections to select the men who would lead them into battle? When George Washington took command of the Continental Army, however, he took immediate steps to put an end to the practice of electing officers, and for good reason. The very qualities that might make a commander popular with his troops — lax discipline, reluctance to risk casualties, an inclination to retreat — could spell disaster for the army as a whole. Gen. Washington realized that a professional officer corps, not an egalitarian one, was essential to defeating the redcoats. The New Englanders protested, but Washington held his ground — to the great benefit of his country and the eventual dismay of Lord Cornwallis. Many important leadership qualities can be identified by democratic means, but military proficiency is not among them. AND DOCTORS, AND PILOTS, AND . . . Today, no one would suggest that positions of technical expertise should be filled through elections. Reflecting George Washington’s wisdom, we would not dream of voting for civil engineers, physicians, or airplane pilots — at least not so long as we want to make sure that bridges don’t collapse, organ transplants don’t fail, and planes don’t crash. Nevertheless, and against all reason, 39 states — including most of the largest — still require at least some judges to face the voters. Like many other bad ideas (consider dinnertime telemarketing and Clinton-era memoirs), judicial elections are not going to disappear anytime soon. The real challenge, therefore, is not how to abolish judicial elections, but how to live with them — and, more precisely, how to keep them from turning into referendums on specific outcomes, substituting the preferences of the electorate for the deliberations of court and jury. For more than 75 years, a broad consensus urged that canons of judicial ethics be used to prevent excesses in judicial campaigning. In jurisdictions with elected judges, every state supreme court (except that of Idaho) adopted some restrictions on campaign promises or pronouncements. The various court rules — generally based on those in the American Bar Association’s Model Code of Judicial Conduct — were not entirely satisfactory, but they did attempt to strike a workable balance between the inevitable pressures of electoral politics and the neutrality essential to honorable judging. Then, at the end of its 2002 term, the U.S. Supreme Court decided Republican Party of Minnesota v. White. At issue in that case was a provision in Minnesota’s Code of Judicial Conduct that prohibited candidates for judicial office, including incumbents, from “announcing [their] views on disputed legal or political issues” that might come before the Court. Writing for a five-member majority, Justice Antonin Scalia concluded that the so-called announce clause violated the First Amendment and rejected the argument that it was justified by a compelling state interest in preserving judicial impartiality. The four dissenters warned that the Court’s decision would open the door to full-scale politicking by judicial candidates, imperiling due process for unpopular litigants. But Scalia was not persuaded, noting that another provision of Minnesota’s judicial code — prohibiting outright “pledges and promises” — remained intact (though he expressed skepticism about that rule as well). DISSENTERS (UNFORTUNATELY) RIGHT It was not long, however, before the dissenters proved more prescient than the majority. In February 2003, in Spargo v. New York Commission on Judicial Conduct, a federal district judge relied on White to invalidate New York’s prohibition against partisan political activity by sitting judges. In a sweeping decision that was not limited to campaign conduct, the Spargo court ruled that sitting New York judges may attend political rallies and demonstrations, speak at party fund-raisers, and endorse candidates for nonjudicial offices. In other words, the court simply obliterated the long-standing separation between politics and judging, holding that an individual’s personal interest in self expression outweighs the state’s interest in attempting to achieve an apolitical judiciary. The Spargo decision is on appeal, so the U.S. Court of Appeals for the 2nd Circuit might yet reinstate at least some of New York’s restrictions on politicized judges. In North Carolina, however, the state supreme court itself took the lead in reuniting judges and politics. On April 2, 2003, the North Carolina Supreme Court, clearly responding to the White decision, issued a dramatic revision of its Code of Judicial Conduct. North Carolina did not have an announce clause, so instead the court repealed its rule against “pledges and promises,” thus allowing judicial candidates to make explicit campaign commitments. And then the court went even further, rescinding its previous rule against face-to-face fund raising by judicial candidates. Based on the ABA’s Model Code of Judicial Conduct, North Carolina’s old provision required judges to set up fund-raising committees, thus removing themselves from direct solicitation. But that sensible prophylactic is now history. The court announced a “safe harbor,” specifically authorizing judicial candidates to “personally solicit campaign funds and request public support from anyone.” (Emphasis added, but Dave Barry did not make this up.) A judicial candidate in North Carolina may now combine a flat-out campaign promise with a face-to-face fund-raising pitch. Just imagine a speech to, say, Mothers Against Drunk Drivers: “I promise you that, if elected, I will never grant probation in a DUI case, so please contribute any amount you can afford.” Or perhaps the candidate will address a county medical association: “I pledge to be the toughest judge in the state on punitive damages, and I accept all major credit cards.” Woe betide the DUI defendant or medical malpractice plaintiff who appears before that judge, especially as the date of re-election nears. In the words of one anonymous North Carolina judge, as quoted in The Charlotte Observer, “The Supreme Court said in the Minnesota case that the bridle can come off the horse, but with these rules our court has taken off the saddle, the bridle, the blinders, the straps, the stirrups, and left the barn door wide open.” Justice is at heart a nonmajoritarian concept. As every lawyer understands, a judge’s job is to weigh evidence and arguments dispassionately in order to reach the right result under the law, whether it is popular or not. Elections, on the other hand, are the ultimate expression of public will, impelling candidates to take positions (whether sincere or poll-driven) in the hope of attracting enough votes to win. But while legislative candidates can make and (sometimes) keep promises, judges are bound to decide cases on their individual merits, not according to a predetermined platform. JUDGING VS. CAMPAIGNING The tension between judging and campaigning remains intractable, even if a majority of the Supreme Court found insufficient redeeming virtue in Minnesota’s announce clause. Not for the first time, the Court simply underestimated the consequences of its ruling. Republican Party of Minnesota v. White has set in motion a trend that threatens to turn judges into a set of politicians in black robes. In an unusually digressive concurring opinion, Justice Sandra Day O’Connor intimated that states might switch to merit selection of judges rather than endure the indignities of uninhibited campaigns. Don’t count on it. It is unlikely that state legislators will be embarrassed into giving up judicial elections, especially now that politicians seem to be even more firmly in control. We can only hope that — unlike North Carolina — they will at least try to maintain a prohibition against “pledges and promises.” If the Supreme Court lets them. Stephen Lubet is a professor of law at Northwestern University. His most recent book is Nothing but the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth. He can be reached at [email protected]. This article previously ran in The American Lawyer , an affiliate of Legal Times.

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