In Texas, judges campaign like politicians, with predictable consequences for judicial integrity, independence, and equal justice under a rule of law. (Third in a three-part series)
Disciplining judges for making an unpopular decision can only undermine their duty to apply the law impartially. Indeed, as Sir Matthew Hale, a respected English judge, explained centuries ago, the duty to be impartial and to be indifferent to popularity is an essential attribute of the judicial office.
-- Retired United States Supreme Court Justice John Paul Stevens, "Should We Have a New Constitutional Convention?", New York Review of Books, October 11, 2012.
Judicial elections, races where sitting judges or judicial candidates beg for votes from past, present, and future litigants, are now sadly the norm in America. They occur, to varying degrees, in 39 states, undermining justice, prejudicing litigants, and generating genuine alarm among old-school conservatives. "When you enter one of those courtrooms," retired United States Supreme Court Justice Sandra Day O'Connor, the first Reagan appointee, wrote in an op-ed piece in 2010, "the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."
Yet litigants everywhere might reasonably have such worries. Supporters of judicial elections claim they are necessary to ensure that the judiciary is more accountable to its constituents. But the whole premise of Western law, and the underpinning of the our justice system, is that judges must maintain objectivity and independence -- and avoid even the appearance of impropriety -- if they are to sustain the judiciary's role in law and governance. The juxtaposition is irreconcilable, of course; the more judges talk and act like politicians, they less able they are to generate faith and confidence in the authority and accuracy of their rulings.
But this eternal truth hasn't spared this generation of Americans from the unseemly judicial election campaigns which now dot the country. It's gotten measurably worse in the past decade or so, thanks in large part to the Supreme Court, which declared in 2002 that the free speech principles in the First Amendment barred enforcement of state judicial ethics rules that prevented judicial candidates (and sitting judges) from "announcing" their "views on disputed legal or political issues." This ruling, Republican Party v. White, was to judicial elections what the Citizens United ruling has been to presidential election campaigns.
MORE ON OUR BROKEN STATE COURT SYSTEM
Part one of this Atlantic series looked at how zealous state legislators have sought to undermine judicial independence, by seeking to limit the authority and jurisdiction of state judges or by threatening them with impeachment. Part two of this series looked at the corrupting influence of corporate money in judicial elections all over the country; how justice is bought and sold under the banner of First amendment freedoms. Now comes part three, chronicling the damage judicial elections cause to state court judges -- how judges themselves undermine their own authority and integrity by begging for votes and appearing partisan and partial.
THE CODE OF TEXAS
Let's focus briefly on just one of these states, Texas, which has some of the most permissive judicial election laws in the nation and where, predictably, special interest money has poured into judicial races.* And let's start with the core obligations that all judges and judicial candidates there have as a matter both of law and ethics. For example, the Texas Code of Judicial Conduct, which governs the conduct of state court judges, is clear and quite relentless in its concern for the appearance of impropriety on the bench. Canon 2B, for example, states that a judge
shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.
Canon 3B(2) states that a judge "shall not be swayed by partisan interests, public clamor or fear of criticism." Section 3B(5) states that a judge "shall perform judicial duties without bias or prejudice." Section 3B(6) goes even further along these lines, stating that a judge 'shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice..." Cannon 3B(10) offers this:
A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected.
Canon 4, which addresses "extra-judicial activities," states that "a judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's ability to act impartially as a judge." And Canon 5 of the Texas Code of Judicial Conduct is right on point. Canon 5(1) states that "a judge or judicial candidate shall not
make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge.
"PROVEN. CONSERVATIVE. EXPERIENCED."
Now, keep all that in your brain for 30 seconds while you watch this 2012 judicial campaign advertisement for Don Willett, an associate justice currently sitting on the Supreme Court of Texas. (I selected him for no particular reason -- other judges and justices in the state also run advertisements like this, or otherwise preen and push for votes. His is an illustrative example.)
Consider it a form of parlor game. The ad is perfectly legal. But how many apparent violations of the Code of Judicial Conduct did you think you spotted in it? How many words or images in it suggested to you the possibility of bias or prejudgment on the part of the justice? How would you like to be an atheist appearing before Justice Willett? (On that note, check out this other Willett ad). How would you like to be a liberal? And how would you like to be a lawyer, any lawyer, citing the Affordable Care Act, the federal health care law, which from the day in March 2010 when it was signed by President Obama has always been the law of the land?
Now watch this commercial from Willett, in which he compares himself to an umpire and pledges to be impartial to the litigants before him.
This is how Texas justice, and Texas judges, operate. Now compare what you heard and saw in that last campaign commercial with the contents of Justice Willett's slick website. Again, it's all perfectly legal. The justice's bumper-sticker slogan is: "Proven. Conservative. Experienced." and he wants to be certain that you understand, right from the get-go, that he's a popular guy. For example, he's proud to have earned the support of James Dobson, the founder of Focus on the Family, and of Foster Friess, the rich, conservative activist. How would you like to be one of those folks and have your case heard before Justice Willett?