The U.S. Supreme Court heard arguments recently in a case involving a Florida woman who wanted to be a judge. In Florida, as in many other states, judges are elected.
Like lots of politicians, Lanell Williams-Yulee needed to raise money for a campaign, so she signed a letter asking for contributions.
The Florida Bar Association was aghast. Its rules say judicial candidates can’t ask for campaign donations because that might lead the public to think judges are for sale.
She sued, claiming the rule violates her free-speech rights.
The arguments in the case were pretty funny. The justices and the lawyers fumbled all over one another trying to figure out how a judge can be a quasi-politician — raise money and buy ads but not really run for office.
Antonin Scalia, his nose firmly raised into the air, wondered if electioneering violates judicial dignity.
“There are certain things that are infra dignitatem,” he sniffed. (That’s Latin for “beneath one’s dignity.”)
Anyone who has spent a lot of time around our legal system knows most lawyers, judges and prosecutors do not lack for self-esteem. They don’t all break out in Latin, but they consider themselves apart. Let the unwashed rabble make the laws, or run for office, they say. Our job is too important to dirty our hands with mere politics.
The Kansas canons of judicial conduct, for example, prohibit judge candidates from making “false or misleading” statements. Of course, if a dastardly opponent makes “unfair allegations,” a would-be judge can legally make a “factually accurate” response.
Who decides what is false, fair or factually accurate? It isn’t quite clear. The violation of the First Amendment, however, is.
There’s an easy way to avoid the problem. Appoint judges, don’t elect them.
Appointed judges are less accountable to the general public, but that’s the point: To be truly independent, judges simply can’t be candidates. They can’t make promises, take donations or argue outside the courtroom.
Once a judge runs for election, though, he or she can be no different from the school board or city council candidate, with full free-speech and fundraising rights. The law can’t allow someone to run for office and then limit what that candidate can say.
Kansas Gov. Sam Brownback has proposed electing state Supreme Court judges or letting him appoint replacements subject to state Senate approval. Only the second idea seems like sound law, or as Justice Scalia might say, lex sonus.