Vol. 78, No. 2, February
Making judicial independence a campaign issue
While many judicial candidates choose not to fully exercise their
First Amendment rights to speak on disputed legal or political issues,
they can and should campaign on judicial independence. With spring
elections approaching, candidates for judicial office should speak to
the electorate on the importance of protecting fair and impartial
by Shirley S. Abrahamson
ood judging is
good politics ... the public will support judges whom they perceive
as independent even if they do not agree with particular decisions. But
judges have to talk about judicial independence and make it a campaign
issue. Over the past twenty-five years, and in each of my elections, the
concept of judicial independence has played a prominent role in my
discussions with the public."1
The Current State of Judicial Campaign Speech
Candidates campaign for public office by stating views and opinions
on the hot issues of the moment. Thirty-nine states hold elections for
some or all judicial offices. Nationally, 87 percent of all state judges
face an election.2 Judicial elections,
however, are different from executive or legislative elections because
judges are different from other elected officials: Judges base their
decisions on the facts and law presented in each individual case, not on
their personal viewpoints on policy issues. Unlike other candidates,
judges cannot campaign by making promises about how they'll decide
issues. Constraints are placed on judicial candidates in all states by
canons of judicial conduct, and limits are placed on a judge's ability
to sit on a case if the judge "decides" the case during a campaign.
State codes of judicial conduct in states with judicial elections also
limit the political activities of judges.3
Restrictions on judicial campaign speech were designed to maintain
judicial impartiality and the perception of that impartiality. The
traditional view is that if a judge comments on a pending case, the
comments will reduce the litigants' and the public's confidence in the
impartiality and fairness of our courts.
In Republican Party of Minnesota v. White, decided on June
27, 2002, the U.S. Supreme Court held that the portion of Canon
5(A)(3)(d)(i) (2000) of the Minnesota Code of Judicial Conduct providing
that a "candidate for a judicial office, including an incumbent judge"
shall not "announce his or her views on disputed legal or political
issues" violated the First Amendment. In response to the U.S. Supreme
Court decision in White, the American Bar Association (ABA)
amended its Model Code of Judicial Conduct. Since the White
decision, judicial candidates have been receiving more questionnaires
than ever before from special interest groups, asking them to reveal
their views on a variety of issues. Samples questions include "Have you
ever cast a public vote relating to reproductive rights?" and "Do you
support the death penalty?"
Many judicial candidates are choosing not to exercise their First
Amendment rights fully because they are concerned that they may tarnish
the public's perception of fairness and impartiality and may disqualify
themselves from sitting on cases. But that reasoning does not require a
judicial candidate to be silent during an election. Judges and judicial
candidates can and should speak on the issue of judicial independence.
Campaigning on judicial independence can educate both judges and the
electorate on the importance of protecting fair and impartial
Shirley S. Abrahamson,
Indiana-Bloomington 1956, chief justice of the Wisconsin Supreme Court,
is chair of the Board of Directors of the National Center for State
Courts and president of the Conference of Chief Justices. Chief Justice
Abrahamson is recognized as a national leader in state court issues,
such as protecting judicial independence, improving interbranch
relations, and expanding outreach to the public.
For more information on judicial independence and judicial elections,
please visit National Center for
Free to Speak on Judicial Independence
Judges and candidates are legally and ethically free to speak about
the critical importance of judicial independence. In any judicial
selection system, the best way to ensure judicial independence is to
develop the public's understanding of, and respect for, the concept of
judicial independence.4 The legal community
must educate the public on judicial roles and duties. Educational
efforts should not be restricted to elections or times of crisis.
The judicial branch must serve as community educators, using a
variety of tools to reach the public, the media, and the executive and
legislative branches of government. Public outreach efforts promote
judicial independence because they enable citizens to evaluate critical
attacks on judges and to value judicial independence.5
The points that should be addressed in this educational effort
- What is judicial independence?
- Why is judicial independence important to you, the citizen?
- What are the threats to judicial independence?
- How can judicial independence be protected?
What is judicial independence? "The law makes a
promise - neutrality. If the promise gets broken, the law as we know it
ceases to exist." - U.S. Supreme Court Justice Anthony M. Kennedy6
Judicial independence means that judges decide cases fairly and
impartially, relying only on the facts and the law. Individual judges
and the judicial branch as a whole should work free of ideological
influence. Although all judges do not reason alike or necessarily reach
the same decision, decisions should be based on determinations of the
evidence and the law, not on public opinion polls, personal whim,
prejudice or fear, or interference from the legislative or the executive
branches or private citizens or groups.
There are two types of judicial independence: decisional independence
and institutional independence (sometimes called branch independence).
Decisional independence refers to a judge's ability to render decisions
free from political or popular influence; decisions should be based
solely on the facts of the individual case and the applicable law.
Institutional independence describes the judicial branch as a separate
and co-equal branch of government with the executive and legislative
Any discussion of judicial independence needs, however, to be joined
with a discussion of accountability. As Roger Warren, president emeritus
of the National Center for State Courts, stated, "the rule of law itself
is a two-edged sword" because it not only ensures the protection of
rights but also enforces responsibilities.8
The rule of law holds government officials accountable to those in whose
name they govern to prevent abuse of power, and the judiciary is not
exempt from accountability. Judges are accountable to the public to work
hard, keep their dockets current, educate themselves about changes in
the law, and treat each person with respect and dignity. Judges are
accountable to represent the judicial branch before the public and other
branches of government and to advocate for court reform.
Why is judicial independence important to you, the
citizen? Judicial independence is a means to an end - the end
is due process, a fair trial according to law. Judicial independence is
a cornerstone of democracy, providing judges who can fairly and
impartially apply the facts of a case to the applicable law, thus
protecting the litigants in court and all the people of the nation. An
independent judiciary increases the public's trust and confidence in the
What are the threats to judicial independence?
Historically, threats to judicial independence have come from the
legislative and executive branches. Executive and legislative leaders
have at times tried to influence judicial outcomes. Today, issues that
have triggered such attempts include legislative reapportionment, school
funding, reproduction rights, gun control, tort reform, and affirmative
action.9 Other governmental threats to an
independent judiciary are:
- poor interbranch relationships between the judiciary, the
legislature, and the executive branch, marked by a lack of
- legislative limits on or curtailment of judicial jurisdiction;
- legislative refusal to increase judicial salaries; and
- chronic underfunding of the judicial branch and increasing
More recently, nongovernmental groups have threatened judicial
independence using political, social, and economic resources to
influence the selection and retention of judges.10 The danger is that when individuals or groups
are highly organized, ideologically driven, and well funded, their
self-interest in winning cases overcomes their interest in maintaining
an independent judiciary.11
More specific threats to judicial independence by nongovernmental
- inappropriate threats of impeachment prompted by particular judicial
- political threats intended to influence a judge's decision in an
individual case; and
- misleading criticism of individual decisions.
The best judges are those who resist threats to judicial independence
and actively advocate for judicial independence. The basic, underlying
safeguard for judicial independence is popular support of the
How can judicial independence be protected? Public
education efforts about judicial independence and judicial selection
face several challenges, including limited public knowledge of courts
and judges and limited resources to reach a broad public audience.
Fortunately, experience has shown that the public is receptive to
messages concerning the impartiality of the judiciary and that lawyers
and judges are effective messengers, especially when partnering with
nonlawyer membership organizations, like the League of Women
The public's appreciation of and respect for judicial independence is
the best way to ensure that the judiciary will remain independent.
14 Public outreach is a task for both
lawyers and judges, year-in and year-out.
1Shirley S. Abrahamson, Speech:
The Ballot and the Bench, 76 N.Y.U. L. Rev. 973, 986 (2001).
2Eleven states have appointment
systems without any type of judicial election. Call to Action: Statement
of the National Summit on Improving Judicial Selection, Expanded with
Commentary (The National Center for State Courts 2002) www.ncsconline.org/D_research/CallToActionCommentary.pdf
3Effective Judicial Campaign
Conduct Committees: A How-to Handbook (National Ad Hoc Advisory
Committee on Judicial Campaign Conduct) (2004). See also Republican
Party of Minnesota v. White, 536 U.S. 765, 803-21 (2002) (Ginsburg,
4Abrahamson, supra note 1,
5Id. at 993-94.
6Anthony M. Kennedy, Bulwarks of
the Republic: Judicial Independence and Accountability in the American
System of Justice, Address at the ABA Symposium (Dec. 4-5, 1998).
8 Roger Warren, The Importance of
Judicial Independence and Accountability, Speech delivered in China
(2003) (transcript available at the National Center for State Courts'
Web site, www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf.
9Shirley S. Abrahamson, Thorny
Issues and Slippery Slopes: Perspectives on Judicial Independence,
64 Ohio St. L.J. 3 (2003).
10Id. at 9.
12Abrahamson, supra note
1, at 990.
14Abrahamson, supra note
1, at 977.
15SCR Chapter 60, Code of
Judicial Conduct - Campaigns, Elections, Political Activity (effective
Jan. 1, 2005).