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Chemerinsky: Are judges politicians? SCOTUS renews the question

Posted By Administration, Friday, June 5, 2015

Editor's Note: Dean Erwin Chemerinsky will be the Keynote Speaker at this year's Judge's Night Dinner on November 10, 2015

The Supreme Court’s recent decision in Williams-Yulee v. Florida State Bar (PDF) will have a significant effect in judicial election campaigns and will create great uncertainty as to the constitutionality of other restrictions of speech by candidates for elected judicial offices. The court upheld a Florida law, based on a provision of the American Bar Association’s Model Code of Judicial Conduct, which prohibits candidates for judgeships from personally soliciting or receiving funds. The court’s emphatic declaration that judges are not politicians is in clear tension with its earlier decision in Republican Party of Minnesota v. White, issued in 2002, and leaves open the question of what else states may do in regulating speech in judicial election campaigns.

Florida, like 38 other states, has judges who must face election. Lanell Williams-Yulee ran to be a trial judge in Florida and sent letters to her prospective supporters to ask them to contribute money to her campaign. She lost the election, and the Florida Bar disciplined her for violating Canon 7(C)(1) by sending out the letter soliciting funds. Williams-Yulee raised the First Amendment as a defense to bar discipline.

Canon 7C(1) of the Florida Code of Judicial Conduct provides: “A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.” Thirty-one states, including Florida, have such a provision.

Williams-Yulee raised the First Amendment as a defense to bar discipline. The Florida Supreme Court ruled against her and on April 29, the U.S. Supreme Court, in a 5-4 decision, affirmed and upheld the Florida law and its application.

Chief Justice John G. Roberts Jr. wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice Roberts began his opinion by powerfully declaring: “Judges are not politicians, even when they come to the bench by way of the ballot. And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”

Read the whole story at ABA Journal


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