23.10. Political Activities of Judicial Candidates for Elective Office

It should be clear that if a judge that has to stand for judicial election (still a large majority of the judges in the United States).  There are a number of ways to elect judges.  Some states have nonpartisan judicial elections.  In those states, judicial candidates run for office are not labeled with a party affiliation (Republican or Democrat).  In other jurisdictions, judicial candidates run in partisan elections (meaning that the candidate has a party label on the ballot).  Because candidates where partisan elections occur are authorized to associate with a political party, some of the restrictions related to party organizations must be relaxed.  Finally, in some states where judges are initially appointed, they periodically face retention elections.  It would be unfair to the candidates and the voters if some of the limitations set out above were not lifted when someone is running for judicial office or someone who has been elected/appointed to judicial office seeks reelection.  Remember – all the other prohibitions set out above (23.1) that are not expressly exempted during a judicial campaign continue to apply to candidates.

The Code makes it clear that judicial candidates must not besmirch the judicial office in the eyes of the public and complies with laws related to a judicial campaign. Thus, the candidate must act in a manner “consistent with the independence, integrity, and impartiality of the judiciary.”[1]  A judicial candidate must comply with all election laws.[2]  The candidate must also review and approve all campaign statements and materials produced by the candidate or the campaign before they are disseminated.[3]  Finally, the candidate must take steps to ensure that those working for the candidate do not engage in activities on behalf of the campaign that the judicial candidate cannot engage in.[4]

Judicial candidates (which would include both non-judges running to be elected as a judge and sitting judges who are running for re-election), can engage in certain conduct that a sitting judge (not running for reelection) may not.  The loosening of restrictions on political activities is limited to the time that the candidate is campaigning for office.

A judicial candidate may set up a campaign committee.  The campaign committee is essentially the fund-raising arm of the campaign.  Because a judicial candidate cannot personally seek campaign contributions from donors, all requests for contributions must come from the campaign committee.  The committee is also responsible for complying with laws related to campaign financing, including contribution limits, reporting requirements, and timing of the solicitation (not seeking contributions too early).[5]   Campaign committees are discussed more below.  Judicial candiates are prohibited from using campaign contributions to benefit the judge or his family.  Finally, a sitting judge running for reelection is prohibited from using court staff or facilities to campaign for judicial office.[6]

A judicial candidate may speak on behalf of their own candidacy through any medium (including websites and advertisements).[7]  The candidate may also endorse or oppose candidates for the same judicial office for which she is running.[8]  Notice how narrow this exception is.  It does not give a judicial candidate a free pass to go around endorsing candidates in all races on the ballot – the candidate may only endorse or oppose for the office they are seeking and only during the time that they are validly in “campaign mode”. 

A judicial candidate may attend or purchase tickets for dinners or other events sponsored by political parties or another candidate for public office.[9]  A judicial candidate may “seek, accept, or use” endorsements from persons or organizations other than a political party if the candidate is running in a non-partisan election.[10]  If the candidate is running in a partisan election then the candidate can identify as the candidate of a political party and may also seek, accept, and use endorsements of a political party.[11]  Finally, during the campaign time-frame, a candidate may contribute money to a political party or candidate for public office but only up to a certain amount.[12]

There are three primary restrictions on what a judicial candidate may say during the course of the campaign.  First, the candidate cannot knowingly (or with reckless disregard for the truth) make any false or misleading statements.[13] This makes sense, the public (and the profession) has an interest in ensuring that judges are not careless with the truth.  One issue that arises is when a judicial candidate is subject to a false, misleading, or unfair allegations made by an opponent, the media, or a third-party.  In these situations, the candidate may make a factually accurate response – but may not make a statement that would impact the outcome of a case, or make any pledges or promises about how the candidate would rule in a matter if elected.[14]

The second restriction is on making comments that might impair the fairness of pending or impending proceedings in any court.[15]  However, legimately statements designed to impact the outcome of a matter – for example, arguments to a jury or instructions given by a court, are on impermissible.[16]

The third restriction on speech while running for judicial office is the most significant.  A judicial candidate is not like a candidate for other political office.  Other candidates are expected to tell the voters how they will vote if a particular issue comes up.  That is a fundamental aspect of democracy. On the other hand, judicial candiates, once elected, are expected to be open-minded and willing to consider all sides of an issue.  Therefore, a judicial candidate, with regard to a case, controvery, or issue that is likely to come before the court, is prohibited from making “pledges, promises, or commitments that are inconsistent with the impartial performance of the adjuciative duties of judicial office.”[17]   This prohibits a judicial candidate from representing that they will always rule in a certain directions (“I will always rule against criminal defendants.”).  However, it is important to understand what this does not prohibit.  From the Comment:

Pledges, promises, or commitments must be contrasted with statements or announcmeents of personal views  on legal, political, or other issues, which are not prohibited.  When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.[18]

The distinction between pledges (prohibited) and personal views (allowed) is the result of the Supreme Court’s case of Republican Party v. White (in the Readings).  In that case the Court held that Minnesota’s prohibition on a judicial candidate “announcing” a view on disputed legal or political issues violated the candidate’s First Amendment right of free speech. That is why the current CJC limits its restrictions to statements that pledge to take a position on an issue that could appear before the court.

A politically active group sends a questionnaire to all judicial candidates to determine their views on controversial issues.  The questionnaire contains the following, asking the candidate to answer “Yes or No” to the questionnaire:

* “I pledge that I am pro-life.”

* “I pledge that in all cases that come to the court on the death penalty, I will rule in in favor of upholding the conviction.”

* “I pledge that I will eliminate the backlog of cases that currently exists at the court I am running for.”

Is it ethical for the candidate to respond honestly to the questionnaire?

First, it is not unethical in general for a judicial candidate to respond to a questionnaire asking for the candidate’s position on controversial or disputed legal issues.[19]  The consideration is whether the questionnaire is worded in such a way as to seek the candidate’s position on the issue (which is fine) or is designed to have the candidate commit to ruling in a particular way if elected.  Using this standard, the candidate may answer whether he is pro-life (or pro-environment; pro-gun; pro-business).  However, the candidate should not respond to the second question – which explicitly asks the candidate to pledge to rule in a particular direction in a case.  The candidate may respond to the third question – pledging to eliminate the backlog of cases.  While it is a pledge, it is viewed as an issue of improving judicial administration which would be a proper pledge.  The judicial candidate could also pledge to work toward an improved jury selection system, or start cases on time.[20]

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[1] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(A).

[2] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(A)(2).

[3] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(A)(3).

[4] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(A)(4).

[5] ABA Code of Judicial Conduct, Canon 4, Rule 4.4.

[6] ABA Code of Judicial Conduct, Canon 4, Rule 4.1(A)(1-10).

[7] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(B)(2).

[8] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(B)(3).

[9] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(B)(4).

[10] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(B)(5).

[11] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(C)(1)-(2).

[12] ABA Code of Judicial Conduct, Canon 4, Rule 4.2(B)(6).

[13] ABA Code of Judicial Conduct, Canon 4, Rule 4.1(A)(11).

[14] ABA Code of Judicial Conduct, Canon 4, Rule 4.1, Comment [8].  The candidate himself/herself may respond, but it would be better, if the issue relates to a pending case, for someone else to respond.  Comment [9]  

[15] ABA Code of Judicial Conduct, Canon 4, Rule 4.1(A)(12).

[16] ABA Code of Judicial Conduct, Canon 4, Rule 4.1, Comment [10].

[17] ABA Code of Judicial Conduct, Canon 4, Rule 4.1(A)(13).

[18] ABA Code of Judicial Conduct, Canon 4, Rule 4.1, Comment [10].

[19] ABA Code of Judicial Conduct, Canon 4, Rule 4.1, Comment [15].

[20] ABA Code of Judicial Conduct, Canon 4, Rule 4.1, Comment [14].