The Supreme Court will hear arguments this week relative to whether a State may bar judicial candidates from personally soliciting campaign contributions for their elections. The case of Williams-Yulee v. Florida Bar, represents a challenge to Florida’s Canon 7C(1) of the Code of Judicial Conduct which prohibits a judicial candidate from “personally” soliciting campaign donations. Back in 2009, Lanell Williams-Yulee ran for a seat on the trial bench in Hillsborough County. She sent out a signed letter to potential contributors seeking money for her campaign and posted a signed appeal on her website, for which she was reprimanded and fined. Williams-Yulee then challenged the personal solicitation ban as a violation of her First Amendment right to free speech.
Previously, in the 2002 case of Republican Party of Minn. v. White, 536 U.S. 765 (2002), the Court had held unconstitutional a canon of judicial conduct adopted by the Minnesota Supreme Court that prohibited a candidate for a judicial office from announcing his or her views on “disputed” legal or political issues.
This, of course, is one of the reasons that judges should not be elected. They’re not elected in the Commonwealth of Massachusetts, where I reside, or in 21 other states, or for the federal bench. Federal judges are appointed by the President with the “advice and consent” of the Senate. As we know, that advice and consent can get tricky, as it has especially during Obama’s term, where the Republicans, even before they got into the majority, blocked massive numbers of federal appointments through the filibuster rule, which eventually got the Senate to change the filibuster rule for judicial appointments.
So, appointing judges is also not without its shortcomings, but in theory a judge should be appointed by the executive with the advice and consent of the legislature, which avoids campaign contributors trying to buy judicial influence directly, and at least requires some consent between the two branches.
Florida, ironically, is the scene of a number of judicial scandals involving their own Supreme Court, most of which happened back in the 1970s, and which should be a fair warning to all relative to what can happen when elected judges are allowed to receive fat campaign contributions.