Freeing Candidate Speech in Judicial Elections: Or How Safe Are Loose Canons?

Publication Date: January 2002

Publisher: Brennan Center for Justice

Author(s): Mark Kozlowski; Praveen Krishna

Research Area: Justice; Politics

Keywords: Democracy; Fair Courts; State Judicial Elections

Type: Report

Abstract:

There seems to be a paradox in the idea of electing judges. As in any election, voters need information that will allow them to assess how each of the candidates is likely to perform in office. Candidates for legislative or executive office typically provide this information in the form of campaign promises/commitments about what they will do if they win the election. But voters also want courts that are fair and impartial, and judges cannot be unbiased if they have previously made commitments about how they would rule if elected to the bench. To protect our constitutional rights, we therefore have rules that limit what judicial candidates can say in a campaign. Hence the apparent paradox: we want meaningful information from judicial candidates and, at the same time, we dont want them telling us anything that would impair their impartiality as judges.

How do we break out of this impasse? We do permit judicial candidates to talk about their qualifications and to question those of their opponents. Third parties who wish to influence the outcome of judicial elections are also allowed to speak about their candidates and third parties are increasingly turning to vicious and often misleading rhetoric to make their points. To return judiciousness to judicial elections--while giving voters needed information and protecting the impartiality of our courtswe may need to rethink the rules governing candidate speech in campaigns for the bench