JUDICIAL ELECTIONS AND THE FIRST AMENDMENT:
The Sensible Middle Path That The Supreme Court Missed

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Aug. 09, 2002

Yogi Berra once said, "when you come to a fork in the road, take it!"

All nine Justices in the Supreme Court's June ruling on state judicial elections seemed to follow Berra's advice. In Republican Party of Minnesota v. White, five Justices-yes, the usual five, Rehnquist, O'Connor, Kennedy, Scalia and Thomas-veered one way, using the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on issues of the day. Four Justices-the usual dissenters, Stevens, Souter, Ginsburg, and Breyer-swerved in the other direction, voting to uphold the scheme as a legitimate effort to promote the reality and appearance of judicial impartiality.

But was the road before the Court really forked? Or might there have been less visible but promising middle path that all nine Justices, rushing to reach their respective endpoints, missed?

These questions are important not just for analyzing White itself, but also for thinking about how White should affect the dozens of other states that, like Minnesota, hold and regulate judicial elections. We believe there was indeed a middle course available in White that should have been found and explored by the Justices. And this middle course, which should provide guidance to other states, suggests that relatively small fixes to the Minnesota law should have changed the result.

The Law At Issue in White, and Why the Court Struck It Down

The Minnesota law at issue in White prohibited a candidate for judicial office, whether an incumbent judge or a non-judge challenger, from "announc[ing] his or her views on disputed legal or political issues." The prohibition went beyond candidate "promises" and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road. (For our own take on the distinction between candidate promises and other candidate speech, at least in the federal judicial selection process, see our column of January 11.)

Strong sanctions accompanied Minnesota's prohibition. Judicial candidates who as sitting judges violate the Minnesota ban are subject to discipline, including removal, censure, civil penalties and suspension without pay. Lawyers who run for judicial office and violate the rule are subject to, among other things, disbarment, suspension, and probation from the practice of law.

Minnesota responded that it needed to regulate candidate speech in order to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them. According to the Court, however, whatever gain in public confidence the Minnesota law achieved was inadequate to overcome the free speech interests of the candidates, because of the "imperative that [candidates] be allowed to freely express themselves on matters of current public importance." Justice Kennedy, whose concurrence took a similar route, added that these First Amendment rights enjoyed by an individual are not surrendered simply because he has thrown his hat into the election ring.

The Dissenters' Contrasting Analysis

The dissenting Justices' approach was quite different. For them, this case was not so much about the First Amendment as it was about states' rights - in particular, the freedom of states to structure their judicial selection procedures to promote judiciousness.

Judicial elections, said the dissent, authored by Justice Ginsburg, are not like other "political" elections, because "there is a critical difference between the work of the judge and the work of other public officials." Judges, must be - and must be perceived to be - impartial and free from politics in a way that legislative and executive officials are not. Because of this, states must "not be put in an all or nothing choice of abandoning judicial elections or having elections in which anything goes."

The majority and dissenters end up in very different places. If one follows the majority, states are going to have a hard time discouraging judicial candidates from speaking their mind, however irresponsibly. Yet if one follows the dissent, states have a pretty free hand to deter people who want to criticize existing judicial rulings and doctrines - no matter the First Amendment costs this might entail. From where we sit, neither of these destinations seems very attractive.

A Third Way Offers a Better System to Regulate Judicial Elections

But there is another place to go, a place where both free speech and judicial impartiality can be protected, a place where the First and Tenth Amendment can peacefully coexist, a place that acknowledges both the centrality of anti-incumbent speech in an election and the right of a state to fill its judiciary with judicious people.

This middle path is based on two key thoughts. First, speakers should not be punished for core political and anti-incumbent speech. Second, there is no First Amendment right to be a judge, and it is not unconstitutional punishment to be kept off the bench for injudicious speech.

In a nutshell, the First Amendment protects one's right to speak about the bench, but not to sit on it; and the Tenth Amendment gives states broad power to structure state officeholding-especially judicial officeholding-but it does not give states free reign to censor and punish free-spirited critics and candidates.

Begin with our second point: It is simply not a punishment that violates the First Amendment for a state to deny a person high public office because of the views he has expressed. That happens all the time in the executive branch, under the (perfectly constitutional) system of patronage used to reward party loyalists with plum government posts. There is, in short, a First Amendment right to be a Democrat, but not a First Amendment right to be a Democrat in a Republican President's Cabinet.

Consider also the selection of judges at the federal level, where the President and the Senate certainly-and permissibly-may refuse to make someone a judge because of what that person has said, even though such refusals are undeniably "content-based" and indeed "viewpoint-based" - and thus, in other contexts, might run afoul of basic First Amendment principles (For further discussion of this, see our column of January 25.)

A President is perfectly within his rights to withdraw a judicial nomination if the nominee says injudicious things. Thus, there is a right to say foolish things, but not a right to both say them and be nominated or confirmed despite them.

If it is not a violation of the First Amendment (and it is surely not) for the Senate to pass an internal Senate rule saying they "will not confirm to the federal bench anyone who has expressed racist views in public," neither is it a violation of the First Amendment for the Senate to announce that it will not confirm any person who speaks out "injudiciously" about the current Supreme Court or any other issues of the day during the confirmation process.

We are not saying the Senate can refuse to consider someone for a judgeship on any ground at all. The fact that a nominee is Black, for example, cannot be a disqualifying characteristic because of constitutional principles rooted in the Fourteenth and Fifteenth Amendments, among other places. But the content and timing of the nominee's expressed views surely can be taken into account without violating the First Amendment

A Possible Counterargument: The People Of Minnesota's Exclusive Right to Pick Judges?

A counterargument to our position might run as follows: In Minnesota, judges are selected not by the Governor and State Senate, but by the people in an election. Once Minnesota has turned over the process of picking judges from government institutions to the people themselves, the counterargument goes, surely the State must allow the people to have access to all relevant information about the candidates.

Perhaps-although pinning down the precise source and scope of this constitutional intuition is no easy matter. One possible argument might run like this: When a state decides to hold a true "election" to determine a contest, the voters in that election should not be constrained in doing their job, lest people be confused or deceived about what powers they are being given or denied.

But suppose Minnesota tweaked its process ever so slightly, so as to avoid any possible deception or voter confusion. Suppose, for example, that the state made crystal clear that the vote of the people was not the final word, but rather only, formally speaking, a strong opinion poll (a "beauty contest," in election lingo) that a governmental agency - perhaps a special committee of the state Senate - should take into account in making the final decision about whom to appoint to the bench.

"Beauty Contests" With Full Disclosure Do Not Violate the Constitution

Consistent with the Constitution, any state could cut the people out of the loop altogether, and give judicial selection powers entirely to a Governor and a Senate who are free to take into account the views and statements of judicial applicants. (Indeed, there is strong Supreme Court caselaw suggesting such state choices are central to the Tenth Amendment and American federalism.) Given that this is so, why can't a state decide to involve the people, but with less finality?

So long as the final decision is made on grounds (judiciousness) plainly relevant to the nature of the office (the judiciary), how is the Constitution violated by this popular "beauty contest" system?

Note that there is no federal constitutional rule that the top vote-getter in a state judicial election must get the bench seat, the way there is, for example, a constitutional rule in the Seventeenth Amendment that the candidate who wins a majority of the statewide vote gets to be the Senator.

Electoral "Beauty Contests" Have A Strong History in America

Popular vote "beauty contests" may be unusual nowadays, but are certainly not unheard of in America. Before the Seventeenth Amendment, which provides for direct popular election of U.S. Senators, many states held beauty contest popular elections that were then used by the State legislatures in their decisions about whom to elect to the Senate.

Similarly, in presidential "elections," states in the early republic were free to use popular vote beauty contests to give the state legislatures information that legislators could then use to decide whom to send to the electoral college.

And even today, a state could, without violating the First Amendment, prospectively legislate that it will award its electoral college votes to the winner of the popular vote in that state only if that "winner" has, say, participated in state-sponsored debates, or has refrained from endorsing racial segregation.

This is so even though the First Amendment would forbid truly punishing someone for boycotting a debate or spewing racist rhetoric at an open political rally. In short, there is no ultrastrong First Amendment right to be a President. Or a judge. The right to speak does not encompass the right to hold either of these jobs no matter what one says.

But isn't there a presumptive right to ply one's lawful private legal practice free from penalty for one's anti-incumbent political expressions? And doesn't the Minnesota regime go too far when it threatens disbarment (and not just ineligibility for the bench) for any non-incumbent judicial candidate who speaks out too politically during the campaign?

Surely it does, and this was the aspect of the Minnesota law that should have been stressed by the majority and was altogether missed by the dissent. When Minnesota not only denies high government jobs to intemperate speakers, but also threatens to take away their private livelihoods without clear evidence that they are unfit to hold those occupations, then the State's actions become punitive in a way that the First Amendment prohibits.

Allowing Minnesota to disbar lawyer critics of incumbent judges and existing judicial rulings would severely dampen core political discourse, whether we call the bench-filling process an "election," a "selection," or a "beauty contest." Punishing private citizens for speaking out against existing laws and judges is precisely what the First Amendment at its core is designed to prevent.

All of this suggests that if Minnesota were to change its election to a beauty contest, and limit the consequences of intemperate speech to judicial ineligibility, its laws should survive First Amendment attack. That much narrower result in White should have been the one the Court reached - and should, indeed, have commanded unanimity, as it satisfies the concerns of all nine Justices. This result also would provide a map for other states, as they revisit their own judicial selection procedures to decide in what direction they want to go.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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