Campaigns for Judicial Office: Different by Design
Judicial elections in Illinois got their start in 1848 when a new state constitution went into effect. Before then, the State legislature appointed judges. The new 1848 constitution transferred the judicial selection power from the legislative branch to the voters. Abraham Lincoln’s friend and Constitutional Convention delegate Judge David Davis explained that the change was necessary because the legislators appointed “a bunch of broken-down politicians” and the people would elect real judges.
Times have changed but Illinois still elects many of its judges. A slew of aspirants for judicial office will appear on June primary ballots with the winners facing off in November. Candidates will campaign for trial level judgeships, appellate court vacancies, and two seats on the Illinois Supreme Court. And while even astute observers might conclude that all campaigns look the same, campaigns for judicial office are designed to be different. The unique role that judges play in the government demands an atypical campaign for judicial office.
Legislators and executives represent partisan interests and values. So, the public expects candidates for these offices to tell their constituents where they stand on issues and what they will do to address crime, education, budget deficits, and a whole flock of other public concerns. Accordingly, candidates make promises to attract voters and, in a perfect world, keep those promises. This is why the executive and legislative branches are collectively known as the “political branches” of government.
On the other hand, while judges run as Republicans and Democrats like other office seekers, they do not have constituencies. Rather, judges represent the rule of law and as such are expected to be neutral, impartial, and fair. They must not allow personal social, economic, legal, or political views to influence their courtroom decisions. Unlike other elected officials, they cannot promise or pledge how they will rule on a given issue or in a given case. They are sworn to decide all matters on the facts and law presented. And although not widely appreciated, judges do just that. As former U. S. Supreme Court Justice John Paul Stevens pointed out, “every judge has made decisions based on laws they personally disagree with and would never vote for if they sat as legislators instead of judges.” The job of a judge is fundamentally different from the job of a political branch official and campaigns for judicial office should reflect that difference.
This is where judicial codes of conduct come in. The Illinois Supreme Court, like every other state’s high court, has enacted an enforceable set of rules covering every aspect of a judge’s professional and personal life. Campaigns for judicial office are no exception. The Illinois Code of Judicial Conduct governs both judges running for higher office or retention and lawyers running to become judges. The Code prohibits judicial candidates from engaging in what are otherwise considered routine campaign practices. Canon 7 of the Code prohibits candidates from speaking on behalf of a political party, holding an office in a political organization, and personally soliciting funds. Misrepresenting or even exaggerating facts about the candidate or their opponent is barred.
Most importantly, in upholding the fundamental value of judicial impartiality, judicial candidates may not commit or even appear to commit themselves on case outcomes. Neither may they take sides on controversial issues. Canon 7 goes further requiring judges to maintain the dignity appropriate to judicial office in their campaigns and to act in a manner consistent with judicial impartiality. Even more restrictive,
Canon 2 mandates that judges act at all times, including in political campaigns, so as to promote public confidence in the integrity and impartiality of the courts. These are not aspirational goals but disciplinary rules under which judges can and have been punished. Such confining rules could never regulate political branch campaigns. No one would ever suggest that candidates for governor or state representative must advise voters that if elected they will act impartially.
So, what does this all mean? It means that the jobs of judges and the jobs of executives and legislators are different and therefore the public has the right to expect a different type of campaign for judicial office—a campaign that comports with the judicial code of conduct. Attack ads do not “maintain the dignity appropriate to judicial office” and therefore should not be part of a judicial campaign. Falsehoods and misrepresentation common in many non-judicial elections have no place in contests for the bench. Further, judges must carefully refrain from promises or pledges or statements that appear to express a predetermined view of issues or cases. A candidate for governor is legitimately expected to make promises on everything from gun control to abortion to education. Judges cannot. They cannot because the code of conduct says they can’t. But much more importantly, such promises belie the role of a judge. Unlike other elected officials, judges are sworn not to prejudge issues or cases. They have to wait to hear the evidence presented by the litigants and then apply the law to the facts.
Sometimes even the most seasoned politicians forget or discount the unique role of a judge. For example, in 2016, during his run for the Democratic presidential nomination, Senator Bernie Sanders told an Oregon crowd: “My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.” No Supreme Court nominee could comply with the Senator’s directive without violating the code of judicial conduct, violating the judicial oath of office, and destroying the nominee’s credibility with the legal profession and the public.
Is it too much to ask a candidate, even a judicial candidate, to conduct a campaign with dignity and without misrepresentations, exaggerations, or implicit promises? Certainly, it is easier said than done especially when independent expenditure committees over which a judicial candidate has no control become involved in the contest. Everyone acknowledges the uneasy balance between maintaining judicial dignity and impartiality and the realities of getting elected in what have become no-holds-barred, expensive campaigns. But that does not mean that voters cannot hold judges to higher standards than other campaigners.
The public should expect that judicial candidates will run their campaigns in the same manner as they will run their courtrooms—no personal attacks, no fudging the facts, no indication of partiality to a particular group or partisan position, no wink and nod promises or pledges, and the treatment of all with dignity and respect. Voters need to ask whether a judicial candidate’s web page, ads, speeches, mailings, and other campaign activities measure up to standards of judicial conduct and common decency that the people have a right to demand.
Ray McKoski is a retired judge from Lake County, Illinois, and the author of Judges in Street Clothes: Acting Ethically Off-the-Bench (FDU Press, 2017)
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