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OF
LOOSE CANONS AND OXYMORONS
Let’s talk about oxymorons. I have one particular self-contradiction
in mind today. That would be the odd concept of “running for judge”
in the county Court of Common Pleas.
Courts of
Common Pleas in Pennsylvania are made up of judges who are required to
engage in the partisan political election process, in their initial
effort to obtain a seat on the bench. The law allows judge candidates
to cross-file during the primary election phase, but as a practical
matter only as Republicans or Democrats (Libertarians, Greens,
No-parties and Constitutionalists need not apply). As a matter of
course, virtually all judge candidates do cross-file, even those who
have no known opposition. Ask yourself, why does the law allow
cross-filing, as in elections for school board? Is it to promote the
appearance of bipartisanship? Why only two party options? For that
matter, why have a primary election at all? Why not simply allow
judge candidates to cross-file in March and then have them run that
way the whole way through to November?
After all,
following the primary election, all pretense of bipartisanship
disappears. In the usual scenario, the “real” Democrat is far more
likely to win his or her party’s primary, as is the “real
Republican.” From then on, the news media will proceed, from May
through the November election, to reinforce the peculiar, irrelevant
idea that it is “the Democrat versus the Republican.”
Despite the
forced partisanship, all judicial candidates are bound, however, by
Canon 7 of the Code of Judicial Conduct, developed and published by
the Pennsylvania Supreme Court. Canon 7, among other things,
prohibits judicial candidates from making speeches for “political
organizations,” publicly endorsing non-judicial candidates for public
office, speaking at “political gatherings,” purchasing tickets for
political party dinners, or even attending political gatherings except
as a representative of his or her own judicial candidacy, or on behalf
of other judicial candidates who are running at the same time. There
is no definition of “political gathering,” “political organization,”
or even “candidate” provided in the Code of Judicial Conduct.
Candidates are cautioned by Canon 7 to conduct themselves in a
“dignified” way, which one would imagine means no ugly mud-slinging,
unlike the usual political campaign.
That is, a
judge candidate (not just an already-sitting judge running for a
10-year retention, or an interim appointee running for an initial
10-year turn) is expected to give up his or her First Amendment speech
and association rights. Why? Is that because of an inherent
contradiction between the presumptively “undignified” partisan
politics and judicial elections?
To return to
Canon 7, Pennsylvania’s original version of that Rule had to be
amended following the United States Supreme Court decision in 2002 in
the case known as Republican Party of Minnesota vs. White. Canon 7,
like a similar canon in Minnesota at the time, prohibited judicial
candidates from “announcing his or her views on disputed legal or
political issues.” The Supreme Court invalidated the so-called
“announce” clause as violative of the First Amendment rights of
judicial candidates. What is interesting about the case of Republican
Party of Minnesota vs. White is the observation by Justice Sandra Day
O’Connor that only 15 of the 50 states currently elect judges through
the partisan election process. Justice O’Connor, in her concurring
opinion, said “. . . [Minnesota’s] claim that it needs to
significantly restrict judges’ speech in order to protect judicial
impartiality is particularly troubling. 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.”
A judge
candidate may say only very dull things about his or her background
and experience, and perhaps wax philosophically about due process,
equal access to justice, and technical improvements to the judicial
system. No pithy quotes for the 11 o’clock news; no sound bites, no
platform, no promises, except fairness and impartiality. The entire
theme of Canon 7 is contradictory to the concept of partisan judicial
elections. Therefore let me make this suggestion for an immediate
improvement to the judicial system: we should elect judges on a
non-partisan basis. Pennsylvania knows how to run non-partisan
elections, for example in its provision for candidates to run without
party identification when seeking a position on a Government Study
(Home Rule Study) Commission, as just occurred in Lancaster County in
the November 2006 election.
Here is
another suggestion: if we are going to continue the partisan election
of judges, there should be a provision for public funding of such
campaigns. National surveys have shown that large majorities of the
responding public believe that campaign contributions are likely to
influence judicial decision-making. Those same polls, remarkably,
show that 50% or more of the Judges themselves believe that judicial
campaign contributions have an effect on judicial decision-making (not
their OWN of course).
Yet, if judges
have to run for office, it is unreasonable to expect them personally
to finance their entire campaign. This is why public financing of
judicial campaigns should be considered here, just as the procedure
adopted in North Carolina recently. North Carolina (with no offense
intended), the home of NCAA basketball, cheap fireworks, and NASCAR,
became the first state in the nation in 2004 to offer a public
financing option, and non-partisan election, of all statewide judicial
candidates. Pennsylvania’s Canon 7 prohibits judicial candidates from
the implicitly tawdry practice of soliciting or accepting campaign
funds personally, but it sanctions the practice of having committees
do that sort of dirty work on behalf of the candidate. How does this
square with the time-worn legal maxim that if the law prohibits you
from doing something directly, it also prohibits you from doing the
same thing indirectly, and/or from having someone else do it for you?
Pennsylvania’s Canon 7 is completely appropriate and well-intended
when it restrains judicial candidates from making “pledges or promises
of conduct in office other than the faithful and impartial performance
of the duties of the office.” That restriction recognizes and
highlights the stark distinction between “political campaigns” and
“judicial campaigns.” The very concept of a “judicial campaign,” like
the phrase “running for judge,” is an oxymoron.
Sam Mecum
Sam Mecum currently is a
candidate for Judge of Common Pleas in Lancaster County.
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