Since the 1830s, Americans have been claiming a role for themselves as voters in the naming of judges for their courts. The obvious lesson, early on and now, is that citizens trust themselves to handle that task fairly and trust that the judges who are chosen that way will do the job impartially. In modern times, some uncertainty has crept in about those assumptions, especially as the cost of elections has escalated, including the price of running for a judgeship. Former Justice Sandra Day O’Connor has made a new career in retirement of leading a public charge against judicial elections. If campaign money is a threat to judicial impartiality, but the First Amendment is understood to treat political money as speech, how far can states go to regulate it? The Supreme Court is no stranger to the abiding controversy over money in politics, and takes that up again this week in a Florida judicial election case. Judges are still elected in thirty-nine states, and in all but nine of those states, there is a law or an ethics code provision that bans a judicial candidate from personally asking for campaign donations. That, it appears, is more preferable as a remedy than getting rid of judicial elections altogether, or relying on judges to disqualify themselves in specific cases. A civic-minded Tampa lawyer, who decided in September 2009 that “the time has come for me to seek elected office,” is at the center of a case testing the constitutionality of that kind of ban. Lanell Williams-Yulee sent out a mass mailing saying that she was running for county judge, declaring: “I want to bring fresh ideas and positive solutions to the Judicial bench.” Her plea for money was modest indeed, by modern campaign standards: “$25, $50, $100, $250, or $500.”
Because Florida’s judicial ethics code disapproves of that sort of appeal, Williams-Yulee wound up with a public remand and a financial penalty of $1,860.30 (to cover the Florida Bar’s expenses of enforcing the ban in her case). Relying on the First Amendment, she challenged the sanctions, but lost in the Florida Supreme Court.
“This court recognizes,” the state tribunal said, “that by prohibiting judicial candidates from personally soliciting campaign contributions, [the ban] clearly restricts a judicial candidate’s speech.” Thus, it said, the code provision had to be proven to serve “a compelling state interest in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary.” It concluded that Williams-Yulee’s sanction met that test.
That conclusion contributed to the now-widespread disagreement among state and lower federal courts over the issue. Three state supreme courts and two federal appeals courts have upheld such bans, while four federal appeals courts have struck them down. Florida’s Supreme Court disagrees with the view of the federal appeals court in its area, the U.S. Court of Appeals for the Eleventh Circuit.
Full Article: Argument preview: Judges, politics, and money : SCOTUSblog.