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The nation’s state chief justices are launching a campaign to remind voters of what used to be obvious: Judicial elections are different from those for other offices. Voicing “grave concern” over increasingly partisan and costly campaigns, the Conference of Chief Justices — representing the top jurists in all 50 states, the District of Columbia, and U.S. territories — voted Aug. 2 on measures to emphasize the “unique nature” of judicial elections. At least some of the judges in 39 states are elected. “It’s the money, it’s the judicial questionnaires, it’s a whole constellation of things happening now that don’t advance the public’s confidence in the courts,” says Indiana Supreme Court Chief Justice Randall Shepard, outgoing chairman of the conference, who hosted the chief justices’ meeting in Indianapolis. “We need to get information to bar associations and judges groups about what to do when the fire alarm goes off, or before the alarm goes off, in an election.” The chief justices also targeted low judicial salaries, which may be discouraging quality candidates from running. New data indicate that state judges’ salary increases are lagging behind those of other state employees as well as private sector lawyers. Though concern has been building for years about the increase in campaign spending and partisanship in what used to be sedate judicial campaigns, the main impetus for the latest effort by the chief justices is the fallout from a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White. That ruling struck down, on First Amendment grounds, a Minnesota canon of judicial ethics that barred candidates from announcing their views on disputed legal or political issues. Several lower federal courts have responded to the decision by striking down other state canons and rules aimed at keeping judicial candidates from making campaign promises and partisan statements that may compromise the substance and appearance of impartiality once they are elected. On July 19, for example, Kansas Federal District Judge Julie Robinson cited the White ruling when she enjoined enforcement of that state’s canon barring candidates from making promises about positions they will take on the bench. A judicial-watch organization sued after a state agency said judicial candidates should not respond to the group’s questionnaire about issues including same-sex marriage and abortion rights. “Most of the rulings so far run out ahead of the Supreme Court’s decision, by and large in ways that lead to behavior that is not good for the judicial system,” says Shepard, who fears the weakening of judicial canons will only feed the cynical view that judges are like candidates for other offices who can be pressured by interest groups and big donors. “No good comes from fostering judicial food fights at the ballot box.” The White decision’s main effect has been to encourage interest groups to ply judicial candidates with questionnaires demanding that they take positions on controversial issues, says Georgetown University Law Center professor Roy Schotland, who studies judicial elections and worked with the chief justices on the issue. “The situation is bad, getting worse, with federal judges leading the way downhill.” At a symposium on the impact of the White decision at the National Judicial College in Reno, Nev., last year, participants called on the chief justices to move aggressively to improve public understanding of courts and the need for open-minded judges, as well as to change the “culture” of judicial elections. A “call to action” endorsed by the participants at the Reno conference urged, “Very high priority must be given to reducing the aspects of judicial elections that jeopardize public confidence in our courts — our state courts directly, but unquestionably all our courts.”
Tony Mauro can be contacted at [email protected].

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