Republican Party of Minnesota v. White raises the question whether judicial elections are different from elections for any other office and whether different rules or procedures are necessary in selecting judges. Also implicated are questions of judicial accountability, diversity, and impartiality. What the answers are remains to be seen.
Republican Party of Minnesota v. White1 was supposed to transform the elections of judges in Minnesota and across the country. For those who believed the decision meant the arrival of expensive, nasty, high-stake contests, Wisconsin Supreme Court races in 2007 and 2008 confirmed their fears. In response to White many organizations, such as the Minnesota State Bar Association and Minnesotans for Impartial Courts, sought to prevent judicial races from becoming politicized and proposed constitutional amendments to change judicial elections in Minnesota, but the state legislature has thus far failed to take action. As the 2010 legislative session begins, judicial selection will again be a hot topic, with groups offering various proposals on what Minnesota should do in response to the White opinion.
Fundamentally, the debate about judicial selection centers on addressing or balancing three objectives: securing an impartial and fair judiciary; promoting democratic choice and accountability; and ensuring diversity and representation on the bench. As this article will show, no one judicial selection system is necessarily the optimum in promoting all three of these goals.
Republican Party of Minnesota v. White is actually two cases.2 There was the United States Supreme Court decision in 2002 (“White I”) and subsequently one by the 8th Circuit Court of Appeals3 (White II”). At issue in both was Canon 5 of the Minnesota Code of Judicial Conduct. The Code prohibited judicial candidates from announcing their views on disputed legal or political issues,4 affiliating themselves with political parties,5 or personally soliciting or accepting campaign contributions.6 In separate decisions, the Supreme Court and the 8th Circuit reviewed and struck down these three Code provisions regulating the speech and conduct of judicial candidates in Minnesota.
Taken together, the two White opinions declared most of Canon 5 unconstitutional. But what exactly the opinions mean remained an open question. Two issues emerged. First, were the two opinions saying that judicial elections were no different from any other election campaigns, such as those for the legislature? By that, should the White opinions be read as a broad endorsement of the principle that candidates for judicial office should be as free as any other office-seeker in seeking party endorsements, speaking on issues, and raising money? Second, given the White opinions, what type of regulation of judicial campaigns and candidates would be permitted? Both of these questions became the subject of intense debate across the country and in Minnesota.
One reading of the two White opinions suggests that judicial elections are no different than any other electoral contest and that most restrictions on them are suspect. For Justice Scalia, to limit what judicial candidates can say is unconstitutional because “the First Amendment does not permit […] by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”7
In her concurrence in White I Justice O’Connor stated that: “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”8 For O’Connor, Minnesota abdicated judicial impartiality as a compelling interest when it opted for elections. Finally, even Justice Kennedy in concurrence stated bluntly that: “direct restrictions on the content of candidate speech are simply beyond the power of government to impose.”9 Read this way, White may very well stand for the proposition that no restrictions on judicial candidate speech are permitted.10 If this is an accurate reading, judicial candidates could even comment on specific cases before the court or which they might hear, subject to removal for real bias if the case did come before them.
While some state regulations of judicial speech were invalidated prior to the Supreme Court’s White opinion,11 decisions after it reinforce the claim that its holding should be read broadly. The New York Court of Appeals in In re Shanley12 ruled that an individual who claimed to be a “law and order” candidate could not be disciplined for that claim under its rules governing judicial conduct.13 However, this case did not cite White and the decision did not rest on 1st Amendment grounds. In Spargo v. New York State Commission on Judicial Conduct14 the state ban on judges engaging in political activity, enacted in order to promote judicial independence, was invalidated.15
In Weaver v. Bonner16 the 11th Circuit invalidated a Georgia rule prohibiting judicial candidates from making false or misleading campaign statements. Citing White, the court asserted that: “[T]he Supreme Court’s decision in White suggests that the standard for judicial elections should be the same as the standard for legislative and executive elections.”17 Finally, in New York State Board of Elections v. Lopez Torres18 the Supreme Court overturned a federal district court decision19 declaring unconstitutional the state’s use of judicial conventions to select candidates for the position of New York Supreme Court Justice. In a 9-0 opinion the Court (again with Scalia writing the majority opinion) ruled that the 1st Amendment gives broad protection to political parties regarding how they select and endorse judicial candidates.
Reading the two White opinions, Lopez Torres, and the lower court decisions together, one gets the sense that the only remedy to address judicial candidate speech or conduct would arise following the election, when it would be necessary to show a real bias or reason to exclude the elected judge from hearing a case.20
Electing Judges Post-White
But not all fear White and judicial elections. Political scientists Chris Bonneau and Melinda Gann Hall21 represent one viewpoint arguing that fears of White are misplaced. By that, judicial elections are good in that they promote accountability and choice. In a carefully designed empirical study of state judicial elections, Bonneau and Hall examined nine myths surrounding judicial elections. They found, among other things, that spending more money on judicial elections leads to an increase in voter turnout, knowledge, and interest; that citizens are capable of assessing judicial qualifications; and that the White decisions have not produced an increase in special interest groups targeting incumbents. Their study contends that big money is not buying elections; yet the authors also concede that their research does not address whether more “competitive elections and expensive campaigns harm public perceptions of the integrity or independence of the courts.”22 Thus, their research fails to address the most important criticism of White: that politicizing judicial elections will compromise the independence and integrity of the courts. Additionally, they concede that involving big money could easily lead to the same problems with judicial races as are found in other races, such as for legislative seats.
Recent judicial races in Wisconsin serve as a rebuttal to Bonneau and Hall. In 2007, Wisconsin Supreme Court candidate Annette Ziegler and groups supporting her spent millions of dollars in a three-way race. The campaign was marked by accusations of false and misleading advertising and the entry of groups, such as the Club for Growth, that more typically are involved not in judicial elections but partisan congressional and presidential races. Then in 2008 Wisconsin witnessed a nasty state supreme court race between incumbent Justice Louis Butler and challenger Michael Gableman. The race featured more than $4 million spent by special interest groups on television, robocalls, and heavy campaigning by business and labor groups and political parties. The result was the first election loss of a sitting justice in 41 years.
Later in 2008, the Wisconsin Judicial Commission ruled that Gableman violated the Code of Judicial Conduct by paying for ads that falsely represented Butler’s record. The Wisconsin races confirm the fears of those who see the worst in White. Competitive judicial elections produced expensive races that mobilized interest groups but did not necessarily improve voter engagement. Finally, the races yielded little to demonstrate increased democratic accountability and impartiality. In fact, no one knows how these two races might have hurt public impressions of the courts in Wisconsin.
Caperton v. Massey
While one reading of what the two White cases mean suggests states have little recourse when it comes to regulating judicial elections, that would not be correct. In Caperton v. Massey23 the Supreme Court seemed to place limits on the two White decisions.
In Caperton a West Virginia jury found the A.T. Massey Coal Company and its affiliates liable for misrepresentation and tortious interference with a contract. The jury awarded Caperton, a competing group of coal interests, $50 million in compensatory and punitive damages. After the verdict but before the appeal Massey’s CEO/President Blankenship decided to support a candidate (Benjamin) challenging a sitting justice on the state supreme court of appeals. Blankenship gave $1,000 to Benjamin’s campaign and $2.5 million to an organization supporting the candidate; he also expended $500,000 independently to support Benjamin. This $3 million was more than three times the total contributions from the rest of Benjamin’s contributors. Benjamin won the election and Massey filed its appeal. Caperton requested Benjamin’s recusal and he denied it. The court in a 3-2 vote, with Benjamin in the majority, reversed the lower court judgment. Caperton sought a rehearing and recusal of the three justices in majority, citing a close connection (one justice vacationing with Blankenship while the case was pending) and other reasons. Two of the justices (including the chief justice) recused themselves, but Benjamin stayed on as acting chief justice. Benjamin then selected two replacement justices to hear the case. The court again by a 3-2 vote sided with Massey. Caperton appealed to the United States Supreme Court, arguing that the failure to recuse violated the Due Process clause.
Writing for the Court in a 5-4 opinion, Justice Kennedy reversed, affirming that the Due Process clause incorporates a common law rule that a judge must recuse himself in cases where he has a personal interest or stake.24 Recusal is further required where the chance of actual bias is too high to be constitutionally tolerable. Here, because of Blankenship’s role in getting Benjamin elected, the Court judged that the latter would feel a debt of gratitude to the former for his efforts.25 While the Court declined to argue that there was actual bias in the case, the combination of the dollar amount of the contributions and the timing of the contributions led to a risk of potential bias sufficiently high that it violated the Due Process clause.26
According to Kennedy, although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome of the case. Just as “no man” (Kennedy’s words) is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.27 Justice Benjamin did undertake an extensive search for actual bias, but that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved. Due process “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.”28
Caperton suggests that judicial candidates who take full advantage of their ability to raise and spend money might very well be compelled to leave the bench out of concern for judicial bias. The Constitution thus appears to say, after the two White opinions and Caperton, that judges can run like candidates for other elective offices, but the demands of impartiality may limit their ability to hear specific cases. Thus, for those who advocate unregulated judicial campaigns with no campaign finance limits—something similar to what Minnesota presently has as a result of White—there is a danger that such elections might run afoul of the Constitution and compromise the impartiality of the courts.
Of course, Minnesota is home to the two White opinions. After White II the fear and hope was that judicial elections would become more competitive, visible, democratic, accountable, and perhaps expensive and nasty. The reality is that this has not happened. Since White II there have been several supreme court and court of appeals elections. Incumbents have not faced expensive and nasty races; political parties and third-party groups have not resorted to high-profile television attack ads; and the problem of voter disengagement continues. In many ways, the political climate of judicial elections pre-White remains status quo. Simultaneously, the races have not been characterized by more competitive and robust electioneering, such as more engaged political debate, an increased number of challengers, and enhanced voter engagement. In many ways, little has changed as a result of the White opinions.
But reaction to White has produced significant debate and call for change in Minnesota judicial elections. Highlighting this debate was a special commission—The Citizens Commission for the Preservation of an Impartial Judiciary—composed of judges, justices, and former legislators among others and chaired by former Gov. Al Quie, which issued a 2007 report and recommendations on how to react to the White opinions. The majority report recommended that, in order to preserve an impartial judiciary and address the threat to it posed by White, the current system of judicial elections in Minnesota be replaced with a variation of what has traditionally been known as the Missouri Plan. The report called for a merit-based selection of judicial nominees with gubernatorial appointment, followed by a performance evaluation of judges after they served a few years in office before facing the voters in a retention election. The minority report agreed with all the recommendations of the majority, except that it recommended the retention decision be made by a special commission, thereby eliminating judicial elections from the state.
Many members of the Quie Commission and the subsequent group Minnesotans for Impartial Courts, headed by Gov. Quie and former Senate Majority Leader Roger Moe, continue to push for retention elections and performance evaluations. At its convention in 2007, the Minnesota State Bar Association accepted the Quie Commission Report as the starting point for debate, eventually endorsing the minority report as its preferred position while voting not to oppose the position of the majority. Since that time, the MSBA has reconsidered and now endorses the retention elections option.
Several attempts have been made at the legislature in recent years to enact the Quie Commission or MSBA recommendations. S.F. 70, sponsored by Sen. Ann Rest and others, and H.F. 224, sponsored by Rep. Steve Simon and others, were introduced in the 2009 session, but they failed to move very far. Simultaneously, several bar associations, including the Ramsey County Bar Association, created Judicial Conduct committees where judicial candidates could register their intent to comply with the old Canon 5 provisions and file complaints against candidates who did not so comply. With rare exception, these committees saw little serious work.
Changing Judicial Selection
While many, such as former Supreme Court Justice Sandra Day O’Connor,29 do not like what White could potentially bring in and accordingly have sought to eliminate judicial elections, the alternatives put forward have been controversial, thereby impeding legislative action.
Debate over what to do at the June 29, 2007 MSBA convention highlighted the disagreements. Some, such as Ramsey County District Court Judge Elena Ostby, expressed concern that merit selection and retention might hurt diversity on the bench and that judicial elections were a better way to enhance the opportunity that people of color would become judges. In part to respond to this concern, the MSBA resolution asked that the merit-selection and retention panels be diverse in their membership. However, there is little evidence that competitive elections are a superior means of securing diversity on the bench. Citing recent research, MSBA President Leo Brisbois has written that nationally, competitive elections are no better at ensuring diversity than are merit selection systems.30 In fact, he argues, based upon an analysis covering judicial selections in Minnesota dating back to Gov. Arne Carlson, that gubernatorial appointments have done a better job securing diversity than have competitive judicial elections, which have placed in all three persons of color—Justice Alan Page and Judges Susan Burke and Gail Chang-Bohr—initially on the bench. Brisbois’ analysis seems to address concerns about diversity and merit selection, but it does not address the problem of democratic choice or accountability: the people have the right to select their judges and the Minnesota Constitution has respected that from the day the state entered the Union in 1857.
But worries over how movement away from judicial elections might hurt diversity continue, as do other concerns. Evidence suggests that different selection processes produce different results in terms of rulings and who serves. Flango and Ducat compared five selection methods—partisan and nonpartisan elections, gubernatorial and legislative appointment, and the Missouri Plan—to see if process made a difference.31 Without reaching any conclusions, the authors suggested that researchers should look to see how selection process affected who was placed on the bench (demographic differences) and the type of decisions (output) of the courts.32 Richard Watson and Rondal Downing found that different methods affected the quality of judges who serve33 but that varying selection processes such as appointing judges did not depoliticize the selection process.34 Instead, each process had its own politics and organized interests adapted to these different methods.35 In sum, each form of judicial selection involves a politics that can produce different outcomes.
Another issue raised by Ramsey County judges is over the wisdom of retention elections and fund raising. By that, one argument is that with the current election process incumbent judges know in July after the filing deadline whether they will face a challenger and therefore need to raise money. In a retention election sitting judges may not know until the last minute that they face a heavily financed anti-retention effort when a big-money attack is launched against them. They may then be unprepared to respond due to a lack of money. Retention elections may limit some partisanship but they do not necessarily eliminate the big money and therefore the concerns about independence and perhaps impartiality raised in Caperton.
Still another concern or argument raised by some is that perhaps the idea of performance evaluations is elitist and anti-democratic. By that, letting experts decide who is fit to serve as a judge undermines the choice of people to make the decision for themselves. Ultimately, the people themselves should be trusted to decide who is fit to serve on the bench. The debate about whether all judicial vacancies or just those for appellate positions should be subject to retention elections has been raised. Additionally, some have argued either that the public will not willingly opt to amend the state constitution to give up voting for judges, or that the current system is not broken and therefore not in need in repair.
Finally, other proposals for reform, such as campaign contribution limits for judicial elections, bringing public financing to judicial elections, or enhancing recusal rules for those elected have all been offered in response to the threat to judicial independence that the two White opinions potentially raise. Yet in each case, the proposed reforms divide groups and legislators over whether they will represent an improvement in judicial independence, compromise diversity, or affect democratic accountability.
Several years have passed since the two Republican Party of Minnesota v. White decisions. The decisions launched a significant national debate over the nature of judicial races and candidates, asking whether judicial races and judges are so different from other competitive races and offices as to necessitate a different set of rules or procedures. This is the core question that White I and White II raise. But these two decisions also implicate questions about what challenges they wrought in terms of core values of judicial accountability, diversity, and impartiality. What is clear is that the debate over what White means, what it has yielded or could produce, and how to react to it has not ended.
1 536 U.S. 765 (2002).
2 See David Schultz, “Judicial Selection in Minnesota: Options After Republican Party v. White,” 62 Bench & Bar of Minnesota 18 (November, 2005), for a more detailed discussion of the two White opinions.
3 416 F.3d 738 (8th Cir. 2005), cert. denied, Dimick v. Republican Party of Minnesota, 546 U.S. 1157 (2006).
4 Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000) (hereinafter referred to as the “announce” clause).
5 Minn. Code of Judicial Conduct, Canon 5(B)(1) (2000) (hereinafter referred to as the “partisan-affiliation” clause).
6 Minn. Code of Judicial Conduct, Canon 5(B)(1)(a) (2000) (hereinafter referred to as the “solicitation” clause).
7 536 U.S. at 787.
8 536 U.S. at 792.
9 536 U.S. at 793.
10 Michael R. Dimino, “Pay No Attention to That Man Behind the Robe: Judicial Elections, The First Amendment, and Judges as Politicians,” 21 Yale L. & Pol’y Rev. 301, 318-319 (2003).
11 See, e.g., ACLU v. Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990) (striking down on 1st Amendment grounds the state’s announce clause); Geary v. Renne, 911 F.2d 280 (9th Cir. 1990) (en banc) (rejecting the promotion of judicial independence as justifying a ban on party endorsements for judicial candidates); Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993) (ruling unconstitutional an announce clause similar to the one invalidated in White); Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998) (invalidating on 1st Amendment grounds an expenditure limit on judicial campaigns).
12 774 N.E.2d 735, 736-37 (N.Y. 2002) (per curiam).
13 See N.Y. Comp. Codes R. & Regs. tit. 22, §§100.5(A)(4)(d)(I) & (ii) (2002).
14 244 F. Supp. 2d 72 (N.D.N.Y. 2003).
15 244 F. Supp. 2d at 86.
16 309 F.3d 1312 (11th Cir. 2002).
17 Id. at 1321 (rejecting the argument that a different level of scrutiny should apply to judicial as opposed to other forms of political or candidate speech).
18 552 U.S. 196 (2008).
19 2006 WL 213955 (E.D.N.Y.,2006).
20 See David Schultz, “Minnesota Republican Party v. White and the Future of State Judicial Selection,” 69 Albany L. Rev., 985 (2006) and Cynthia Gray, “Case-law following Republican Party of Minnesota v. White,” 93 Judicature 26 (July-August 2009) for detailed reviews of the post-White cases.
21 Chris W. Bonneau and Melinda Gann Hall, In Defense of Judicial Elections (2009).
22 Id. at 18.
23 129 S. Ct. 2252 (2009).
24 129 S. Ct. at 2259; see also Tumey v. Ohio, 273 U. S. 510, 523.
25 Id. at 2262.
26 Id. at 2263-4.
27 Id. at 2264-5.
28 Id. at 2265.
29 John Schwartz, “Effort Begun to Abolish The Election of Judges,” N.Y. Times A12 (December 24, 2009).
30 Leo I. Brisbois, “Judicial Elections Are Not Necessarily a More Effective Way than Merit Selection for Attorneys of Color to Reach to Attain a Seat on the Bench—At Least Not in Minnesota to Date,” (2009) (Unpublished manuscript on file with the author).
31 Victor Eugene Flango & Craig R. Ducat, “What Difference Does Method of Judicial Selection Make? Selection Procedures in State Courts of Last Resort,” 5 Just. Sys. J. 25, 29 (1979).
32 Id. at 37, 39.
33 Richard A. Watson & Rondal G. Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan (1969), at 282-308.
34 Id. at 330-332.
35 Id. at 75, 123-26, 163-68.
DAVID SCHULTZ is a professor in the Hamline University School of Business. He also teaches in the Hamline University School of Law and at the University of Minnesota School of Law.