Today’s guest blogger is Charles Benjamin Schudson, author of the book Independence Corrupted: How America’s Judges Make Their Decisions.
They all agreed. Bret Kavanaugh and every senator on the Judiciary Committee agreed that independence is essential to judicial fairness, and that, to maintain independence, judges and judicial nominees must not forecast their positions on issues that could come before them.
So like all supreme court nominees, Judge Kavanaugh “answered” many questions by explaining that, to preserve at least the appearance of independence, he must promise only an open mind. The senators agreed.
How surprising that neither Kavanaugh nor any senator mentioned that independence is no longer the fulcrum on which decision-making rests. How disturbing that pundits and policy-makers don’t seem to know that, since 2002, America’s judges have been free to forecast their decisions on every issue – abortion, guns, executive privilege – even if they do so pandering for political support.
What happened in 2002? The US Supreme Court decided Republican Party of Minnesota v. White, invalidating the “announce clause” of Minnesota’s Code of Judicial Conduct. Like the judicial ethics codes of almost all states, it prohibited judges and judicial candidates from “announcing” their positions during their campaigns. Thus, the Court upended America’s law and tradition of judicial independence.
Before 2002, when I ran in Wisconsin for both the trial and appellate bench, I campaigned – door-to-door, in bowling alleys and churches, and even at labor, corporate, and partisan gatherings. But I could not offer opinions about abortion, guns, or other subjects I might be judging. Even when vying for endorsements and financial support, silence was golden. And if I violated that standard, I could be suspended or removed from office.
Starting in the 1960s, all fifty states enacted such codes. But while almost all judges complied, some candidates rebelled. Propelled by personal beliefs and political ambitions, they campaigned on controversial issues; they soon found themselves in court fighting the disciplinary prosecutions of their conduct.
One of them, a candidate for the Minnesota Supreme Court, sought an injunction to stop the ethics board from disciplining him. Minnesota’s Republican Party joined his cause. They argued that the code violated his First Amendment rights and denied voters what they needed for informed voting. The US Supreme Court, 5-4, agreed.
The result: judges and judicial candidates now are free to forecast their positions on any issue. Thus, since 2002, judicial elections have morphed from low-financed yawners to high-financed screamers about abortion, capital punishment, gun control, same-sex marriage, and “tort reform.”
America’s judges now are more vulnerable to litmus testing and political pressuring than ever before. Voters and interest groups may demand, “What would you decide?” And now, like never before, judges and judicial candidates calculate their answers according to endorsements and dollars.
Without taking sides on the First Amendment merits of the Supreme Court’s decision, all can acknowledge its enormous consequences. After all, approximately 99% of America’s court cases – from child custody to medical malpractice, from multi-million dollar disputes to murder – are decided by state judges. And thirty-nine states, accounting for almost 90% of America’s judiciary, elect their judges.
Thus, except for Marbury v. Madison, the 2002 case may mark the Supreme Court’s most significant decision on judicial authority and conduct in American history. The fairness (or at least the appearance of fairness) of all state judges may never recover.
Two hundred years ago, Chief Justice Marshall declared that “the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was … a dependent judiciary.” And in a 2015 decision, Chief Justice Roberts implored, “Judges are not politicians.” Perhaps. But now we must ask whether America’s judicial independence can continue and, without it, whether our democratic republic will survive.
Charles Benjamin Schudson, a Wisconsin Reserve Judge Emeritus, served as a state and federal prosecutor, a trial and appellate judge, and an Adjunct Professor of Law at Marquette University and the University of Wisconsin. From 2009 to 2014, he was a Fulbright Fellow teaching at law schools abroad.