Zero-Sum Judicial Elections: Balancing Free Speech and Impartiality Through Recusal Reform

While campaigning for a seat on the bench, Wisconsin Supreme Court Justice Louis Buder spoke at a fundraiser for a gay-rights group, gaining the group's endorsement, raising over $21,000 for the group, and earning a favorable editorial in an LGBT pubfication.1 Once Butler was in office, a minister brought a defamation suit against the gay-rights group, and Buder cast the deciding vote that dismissed the case, requiring the minister's attorney to pay $87,000 in court costs and fees.2 Denying a motion requesting the justice's recusal, the Wisconsin Supreme Court held that Buder subjectively determined that he could be impartial and thus satisfied the standard for hearing the case.3 States that choose to elect their judges face a constitutional predicament. Judicial elections create a zero-sum game between free speech and due process.4 In order for there to be an informed electorate, judicial candidates must notify the public about their poUcies and opinions. Additionally, the judicial candidate has a First Amendment right to declare his positions prior to the election. Without judicial free speech, the electorate cannot accurately choose the best candidate, and the purpose of the election is thwarted. But in stating their opinions, judicial candidates risk losing the appearance of impartiality and threaten due process rights. Regardless of the correctness of the Wisconsin Supreme Court, allowing Justice Butler to hear the case unquestionably threatened the appearance of impartiality. No matter how fair and impartial they actually are, elected judges who criticize and openly oppose a litigant's poUcy position in their campaign lose their ability to appear fair and neutral when such a case is brought before the bench.5 In these zero-sum judicial elections, states traditionally side with due process rights, circumventing threats to impartiality through judicial campaign speech restrictions. For example, a "pledge or promise clause" in a state's code of judicial conduct prohibits judicial candidates from promising to rule a certain way on an issue if they are elected. These states feel that such prohibitions limit the damage to the appearance of impartiality that unlimited speech would cause. But with each prohibition that states pass in this zero-sum game, the electorate becomes less informed about each candidate's positions and the candidate's First Amendment rights are hindered. In 2002, the United States Supreme Court addressed the quandary between the due process clause and the First Amendment in Republican Party of Minnesota v. White.6 The Court held that one of Minnesota's prohibitions on judicial speech, an "announce clause," violated the First Amendment.7 Only nine states employed announce clauses, which amorphously stated that judicial candidates could not announce their positions on legal issues. While the Supreme Court specifically limited the scope of its holding to diese announce clauses, lower courts have accepted White as a watershed case for striking down most, if not all, of the judicial restrictions on free speech. Many critics say that such interpretation poses a threat to judicial independence. Among these critics is former Justice Sandra Day O'Connor, the swing vote in the 5-4 White decision, who has expressed regret over the lower courts' interpretation of White since leaving the bench.8 At a judicial conference, Justice O'Connor told the authence that she does not revisit many of her rullings but was having second thoughts about White because it "produced a lot of very disturbing trends in state election of judges."9 Now, seven years after White, such trends have state supreme courts and judicial ethics committees throughout the country still struggling to integrate the White decision and its conflicting progeny. States are uncertain how speech restrictions will be treated by the courts and are concerned about how to limit the negative effects of unrestrained judicial election speech while still allowing candidates to speak dieir minds and inform the public of their positions. …