Thursday, February 19, 2009

OK, Judge, you hit your number or die in this room*

Much of the attention following yesterday's decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb's decision seems to me, given the balance struck between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have pre-judicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a candidate is a Republican or Democrat. In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions. It's not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate's judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct's prohibition against the personal solicitation of funds by judges and judicial candidates. This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that - observing that the restriction may have had the "quaint" intent of protecting judges from the indignity of dialing for dollars - but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct and restrictions on contributions have been far more likely to be sustained. It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one's partisan affiliation (or, as in White, one's position on certain issues of public interest). Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd


Anonymous said...

Regarding this decision and the upcoming supreme court race, could you please contact Art Hackett at Wisconsin Public Television 608 263-8585 or by e-mail at

Anonymous said...

I agree with you. I am shocked that everyone, the media and bloggers, missed the most important part of this ruling and focused on the one that makes no difference.

James Wigderson said...

It strikes me that the easiest solution is to change judicial races from non-partisan to partisan, and make the parties the sole fundraisers for judicial candidates.

Anonymous said...

Aside from the constitutional principles, regarding which I think Crabb got it right, the fact is that judges and judicial candidates have always done "call time," at least the successful ones with any competition. The difference is that a judicial candidate stopped short of asking for money, instead asking for personal support, use of the name as a supporter, etc. All OK under the rule.

And then a campaign staff member or committee member would call back. All perfectly standard and consistent with the now invalidated rule.

Letting judicial candidates avoid what was a see-through ritual doesn't change much.

Dad29 said...

Anony, I think you're wrong on the last sentence (the rest, you're probably right.)

There is a quantum difference between asking for an endorsement and directly asking for money. Period.

If you don't think so, then try it yourself...

Nathan Petrashek said...

"[Abrahamson] said campaign advisers - and not her personally - asked for the donations for her campaign for a third 10-year term on the court."