Judicial Campaigns May Put Democracy at Risk, CJP Chair Says

Monday, May 24, 2010

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Judicial Campaigns May Put Democracy at Risk, CJP Chair Says

By KENNETH OFGANG, Staff Writer

American democracy “may well be at risk” as judicial campaigns turn into special-interest funded political contests in which candidates are pressured into taking political stances, Fourth District Court of Appeal Presiding Justice Judith McConnell told a community forum.

McConnell, who in addition to presiding over Div. One is the chair of the Commission on Judicial Performance and a member of the Statewide Commission for Impartial Courts, made the remarks Thursday night at Southwestern Law School.

The event, co-sponsored by the League of Women Voters, brought together interested voters and candidates for the Los Angeles Superior Court. The candidates—18 of the 21 running in the June 8 primary attended—did not get to speak but were able to distribute materials and mingle with each other and about 35 others before McConnell spoke.

McConnell noted the increasing involvement of political parties and advocacy groups in judicial campaigns, in which candidates are increasingly being asked to complete questionnaires asking them not only about judicial philosophy, but as to how they would rule in actual cases.

In the past, she noted, candidates could simply “cloak themselves in the canons” of ethics and refuse to answer such questions. But their ability to do so, she said, has been compromised by the U.S. Supreme Court decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which invalidated a Minnesota law preventing judicial candidates from discussing public issues that might come before the court.

“Judicial independence does not mean judges are unaccountable or allowed to follow their whims, it means they are independent of the other branches of government,” she explained. To maintain that independence, she opined, candidates for election to the bench need to avoid the types of “nasty” campaigning often associated with those seeking executive and legislative posts.

Judges, she said, “should not be accountable to politicians...or the clamor of the moment.” California, she noted, still prohibits judicial candidates from making statements that “commit” them as to how they will rule in future cases.

McConnell said she was shocked when one of the local candidates told her he would have to spend about $250,000 in total to win election if his contest went to a runoff. She also expressed amazement at the high cost of placing a candidate statement in the sample ballot pamphlet.

The cost of placing an English-only statement in the pamphlet for the June ballot would have been $99,000 per judicial candidate, but none of them chose to do so. The impartial courts commission has recommended that candidate statements be publicly funded, one of 78 recommendations the Judicial Council will be asked to endorse at its June meeting.

Under current law, each county decides whether to require candidates to pay the cost of printing or distributing the candidate statements, or to pay them out of county funds.

The CJP chair also voiced frustration at the fact that while the commission has disciplined judges for election-related ethics violations—including using an internal mail system to solicit backing, seeking support from courthouse workers during business hours, using a photograph of the judge with court employees without obtaining the employees’ consent, and leaving the courthouse to campaign without clearing the court calendar—the State Bar has never disciplined an attorney for misconduct in the capacity of a judicial candidate, even though the Rules of Professional Conduct authorize it to do so.