Professor: Supreme Court case illustrates problems with judicial elections, campaign fundraising

LAWRENCE — A case set to appear before the Supreme Court addresses important issues about the funding of judicial election campaigns and raises broader questions about the impartiality of judges. A University of Kansas law professor has written an article examining judicial impartiality and arguing that its core — equal application of the law — may be threatened by judicial campaign fundraising.

Stephen Ware, professor of law, has an article forthcoming in the Vanderbilt Law Review En Banc, on Williams-Yulee v. The Florida Bar, a case that will be argued in the Supreme Court on Jan. 20. The case arises out of Florida, one of many states in which voters choose among competing candidates in judicial elections much as they choose among competing candidates running for legislator or governor.

“However, states tend to regulate the conduct of judicial candidates more tightly, and these regulations are sometimes challenged in court,” Ware said.

In the case before the court, Lanell Williams-Yulee, a candidate for a Florida judgeship, violated a state law prohibiting judicial candidates from personally soliciting campaign contributions. Florida, like most states, but not Kansas, requires that judicial campaign-fund solicitation be conducted not by the candidate but instead by the candidate’s campaign committee. The Florida Bar sought to reprimand Yulee for her violation of the law, and the Florida Supreme Court convicted her. Yulee argues that the law violates her right to free speech guaranteed by the First Amendment.

The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all.

Ware does not believe judges should be elected, in part because the funding of judicial election campaigns is so troubling.

“Many reasonable people worry that judicial campaign contributions can threaten a judge’s impartiality,” Ware said, by tempting a judge to apply the law differently to a case involving a contributor than to a similar case not involving a contributor. This would violate the core of judicial impartiality which the Supreme Court has explained “guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.”

The serious risk judicial campaign contributions pose to judicial impartiality is not, in Ware’s view, solved by requiring contributions to be solicited by campaign committees, rather than by judicial candidates themselves, because judges can usually learn who contributed to their campaign committees, and lawyers and litigating parties know that judges can easily discover who contributed to their campaign committees.

Ware examines three possible reforms to judicial campaign funding: having judges recuse themselves from cases involving campaign donors; making donations anonymous and publicly financing judicial elections. While Ware sees in some of these reforms potential to reduce risks to judicial impartiality, he does not believe any of them would go far enough without creating other problems.

“I’m skeptical that there is a good way to fund judicial elections,” Ware said, which is one of the reasons he believes judges should be appointed rather than elected.

However, he said he differs from many of his fellow attorneys who believe that they should have special powers in appointing judges, as they currently do in appointing the supreme courts of Kansas, Missouri and several other states.

By contrast, Ware prefers the Constitution’s method of selecting federal judges — in which the president nominates and the U.S. Senate confirms judges — and points out that in about a dozen states the governor’s judicial nominee is similarly confirmed by the state senate or other democratically elected body. Ware says democratic appointment of judges, rather than an appointment process that privileges lawyers over their fellow citizens, better fits the position of state-court judge, which involves the power to make law.

As the Supreme Court said, “Complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the states' constitutions as well, which is precisely why the election of state judges became popular.”

In other words, Ware said, the Supreme Court recognizes that democracy is appropriate in selecting judges, especially the state supreme court justices whose “immense power” to hold laws unconstitutional affects a range of widely contested issues like school funding, same-sex marriage and the death penalty. Ware says constitutional language on these topics is often vague or ambiguous, so reasonable people can disagree about how to interpret it and judges' interpretations seem to correlate with their policy preferences, all of which strengthens the case for democracy in selecting judges.

“While judges make law, they do so in different ways than legislators and governors, so I think state judges should be selected by the sort of indirect democracy that selects federal judges, as opposed to the direct democracy of judicial elections," he said.

Also, doing away with judicial elections would do away with the challenges of funding judicial election campaigns and thus help ensure an impartial judiciary, he said.