Judicial Separation From Politics

Political and Campaign Activity

Judicial Separation From Politics

Rule 4.1(A) of the Model Code of Judicial Conduct bars a judge or judicial candidate from acting as a leader in, or holding an office in, a political organization;¹ from making speeches on behalf of a political organization;² and from publicly endorsing or opposing a candidate for any public office.³ A politician does all three as routine business. The Supreme Court explained why a judge may not in Williams-Yulee v. Florida Bar: judges are not politicians, even when they come to the bench by way of the ballot.⁴ The rule's catch-all names what is at stake, forbidding any political or campaign activity inconsistent with the independence, integrity, or impartiality of the judiciary.⁵

Politicians are expected to respond to their supporters, and that responsiveness is key to self-government through elected officials. A judge works under the opposite expectation. In deciding cases, a judge does not follow supporters' preferences or give special consideration to campaign donors, but must observe the utmost fairness and be “perfectly and completely independent.”⁶ As the dissent in Republican Party of Minnesota v. White put it, judges “do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency.” In the same passage: “[I]t is the business of judges to be indifferent to popularity.”⁷

The public must also be able to see that independence, so even a judge who never favors a supporter can damage the courts. “[E]ven if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary.”⁸ The danger is greatest because most donors are lawyers and litigants who may appear before the judge they are supporting.⁹ A party office or a rally speech raises the same concern in another form, since each visibly allies the judge with one side.

Choosing judges by election does not change this. A State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office,¹⁰ and States may regulate judicial elections differently from political ones because the role of judges differs from the role of politicians.¹¹ Elected judges therefore carry restrictions that their legislative counterparts do not share.

Rule 4.1(A) fixes who carries those restrictions in its opening words: “Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not.”¹² Two groups are covered. A sitting judge is bound at all times, whether or not an election is near. A judicial candidate is bound as well, and the Code defines that term to include anyone seeking judicial office, whether a sitting judge asking for another term or a lawyer who has never sat. Williams-Yulee shows a candidate answering for the Code before reaching the bench: she lost her primary to the incumbent judge, and the Florida Bar then charged her with violating a rule that requires judicial candidates to comply with applicable provisions of Florida's Code of Judicial Conduct.¹³ Reaching candidates matters because a campaign is when alliances and promises get made. If the prohibitions waited for the oath, a candidate could win party backing, commit to supporters, and take the bench already compromised. The opening exception clause marks where that baseline gives way, since Rules 4.2, 4.3, and 4.4 are the provisions that give candidates room to run their own campaigns.

Whether Rule 4.1(A) applies, and whether a judge may campaign at all, turns on what office the actor seeks.

Alvarez is a judicial candidate, so every prohibition in Rule 4.1(A) governs her campaign, together with the permissions the Code gives candidates for their own races. Brandt seeks a nonjudicial office, and the general rule is that he must resign his judgeship when he becomes a candidate. The difference lies in the office sought. A candidate for judicial office remains a judge in waiting, so the Code keeps its prohibitions in place and offers permissions designed for judicial races. A senate candidate must run as a politician, seeking party support, taking positions, and asking for votes on a platform, and those are the activities Rule 4.1 withholds from a judge. Nobody can do them while holding an office that demands neutrality, so the Code requires resignation instead of writing special campaign rules for judges who run for political office. The campaign latitude described in the later sections of this chapter therefore belongs only to people seeking judicial office. The resignation requirement sits in its own provision of the Code, so this chapter takes it as given.

The line also runs outward from the bench. In Grievance Administrator v. Fieger, the lawyer involved had run for governor and become a leading figure in his state's Democratic Party. A person who leads a party and campaigns for it does what Rule 4.1(A) forbids a judge to do, yet the rule does not reach him, because he is neither a judge nor a judicial candidate. Had he announced a run for a seat on the bench, he would have become a judicial candidate, and every prohibition in the rule would have applied from that point forward.

With coverage settled, the three prohibitions quoted at the start become the next three topics: party office, party speeches, and endorsements. Each keeps the judge's name and office away from party machinery and from other people's campaigns, which is the separation the premise requires.