NCPA - National Center for Policy Analysis

How Political Can Judges Be?

February 27, 2003

Last year, the U.S. Supreme Court struck down a state rule that prohibited candidates in judicial elections from taking stands on disputed legal or political issues. Writing for the majority, Justice Antonin Scalia said judicial candidates have the same right to free speech as any other candidates.

Opponents of that decision, in Republican Party of Minnesota v. White, predicted it was a "ticking time bomb," which would eventually result in excesses in judicial politics.

Now, they say, the bomb has gone off.

  • Last week, a U.S. district court judge in Utica, N.Y., ruled that state authorities may not punish a state trial judge for enthusiastically participating in the political process.
  • The state's Commission on Judicial Conduct had accused the state judge of handing out doughnuts and gasoline coupons during his campaign, buying drinks for voters, speaking at political fund-raising rallies and participating in "loud and obstructive demonstrations against the recount process outside the offices of the Miami-Dade County Board of Elections" in the aftermath of the 2000 presidential election in Florida.
  • Opponents of the White decision argue that judges must behave with dignity and integrity sufficient to merit the public's trust, and that the Supreme Court lost its way in this case.
  • But supporters of the White decision contend it was a triumph for legal realism -- that judges are bound up in the political process, and to argue otherwise is naive.

Whatever the eventual outcome, these cases have reignited the old controversy over the wisdom or propriety of electing judges, rather than appointing them.

Source: Adam Liptak, "Federal Rulings Undercut Notion That Judges Are Above Politics," New York Times, February 22, 2003.


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