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Lawyers, Judges, and Money


The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.

I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.

White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’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.

I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.

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  • I wouldn’t have given her a choice. I would have asked straight out why she *doesn’t* regret Bush v. Gore.

  • DocAmazing

    Ah, the “free speech” dodge! There was once a funny short story (can’t remember the author) in which a murderer engraves a phrase on a bullet, which bullet he then shoots someone with. He was merely expressing an idea, albeit in an unusal fashion, and how was it his fault that his audience couldn’t handle the message? Freedom of speech, baby!

  • Hogan

    Donating or spending money isn’t pure speech but a means to make speech more widespread.
    This point needs to be hammered on in these discussions. Money isn’t speech; money is the megaphone. Regulating the use of megaphones in public space is not a First Amendment violation.

  • And if money is speech, then bribery is constitutionally protected.

  • drip

    The idea of speech as money is facially absurd, thus the jokes and ironies. But it really is a tough issue in an age when access to mass media is so constrained and basically limited to the rich. Even the Dean model which Obama adopted, at least partly, gives the money to GE, Scaife, Murdoch, Hicks, etc. But I will be the first to say that if I had 6 billion dollars, I wouldn’t leave it to my kids, I’d want to spend it on speech. Like Scaife, et al.
    The only balance I have been able to come up with is to ban all television and radio advertising and reinstating the fairness doctrine. Its almost certainly constitutional but it would be fiercely opposed by the big media and is probably pie in the sky. It would also limit the dissemination of information. It would be great for bloggers though.

  • Will

    I’m not super familiar with all the pros and cons of various judicial selection/election plans. You can talk about how a plan should work, and what you expect it to accomplish, but a certain point the plans need to be evaluated based on empirical evidence.
    However, based on what I do know, the “combined appointment and retention election system along the lines of the Missouri Plan” seems to be one of the better ideas out there.
    Of course, it all depends on what sort of judges you want on the bench and what you think a ‘good’ judicial (s)election plan looks like.

  • Fuck Sandra O’Connor.
    If there’s any justice, Bush v Gore is all she’ll ever be remebered for.
    Her and Flipper Kennedy.

  • …how was it his fault that his audience couldn’t handle the message?
    This story is good for a laugh, except…
    Courts have held that states can impose reasonable restrictions on the “time, place and manner” of expression. While the state couldn’t impose content restrictions, it might “reasonably” argue that a bullet into the skull isn’t an acceptable means to express it.
    Here in Oregon, in theory, we elect our state court judges. But here’s what usually happens: an incumbent resigns near the end of his or her term and the governor appoints a replacement. Then the replacement runs as an “incumbent” and, almost always, wins.
    The system seems hypocritical but it works fairly well. Judges are usually not political hacks, since the Bar gets involved in vetting applicants. If an appointed judge performs badly, voters can elect a replacement later.

  • Bloix

    The First Amendment doesn’t say “there shall be no laws abridging the freedom of speech.” It says “Congress shall make no law.” It doesn’t say anything about what a state legislature can do. I understand the incorporation doctrine as well as any other lawyer, but I would think that the regulation of electoral politics in the case of judges (where the state need not permit elections at all) would be a particularly important aspect of state sovereignty that the court would be reluctant to interfere with based on a court-made extension of the First Amendment. And one would think that the actual experience in how money corrupts the administration of justice would play some role in the decision-making where First Amendment absolutism seems completely out of place.

  • Of course, campaigning is mostly pure speech, and campaign finance regulations limit people’s ability to receive money based on their participation in that pure speech. There’s no great reason I can think of to always and exclusively think of the donor as the regulated actor.

  • However, based on what I do know, the “combined appointment and retention election system along the lines of the Missouri Plan” seems to be one of the better ideas out there.
    Tennessee wooooooo.

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