Silent Running: The Absurdity of Judicial Elections

It’s not easy to appear dignified as you strut down the boulevard in hot pants and eight-inch spikes, yet that’s what’s demanded of candidates for judicial office.  Try running in eight-inch spiked heels. The reality is that candidates are constrained to use the limited fodder available to them, make it comprehensible to a broad array of voters who are unlikely to share the cloistered sensibilities of their overseers, and win their vote, if not their hearts and minds.

It Ain’t Pretty and We Should Not Pretend That It Is.

In Ohio, Mark Davis was sanctioned by a  public reprimand for “falsely stating his academic credentials,” and, outrageously, defiantly arguing his cause rather than cowering on the floor in remorse.

The record reveals the respondent equated the major and minor courses of study in his undergraduate education to additional degrees earned at Miami University and the Ohio State University Moritz College of Law. In addition, he designated a certificate earned during law school as an additional degree to his juris doctorate degree. The designation of major or minor courses of study and a certificate at institutions of higher education as separate degrees is not an accurate representation of the actual degrees awarded by each institution. Only two degrees were earned by the respondent, not six separate degrees in a seven year period.

Davis, as characterized by the court that ruled against him, argued that his majors and minors, as well as his certificate, were the functional equivalent of degrees, which was roundly rejected.  Between the lines, however, Davis’ point is not only clear, but quite understandable. He was trying to communicate educational accomplishments in a short yet understandable fashion to voters who may not share the court’s nuanced grasp of high education. 

It’s a clash of the technical against the practical, but as a candidate running for office, Davis was caught in a Catch-22.  He needed to get his point across to a group of voters who had neither the patience nor interest in a lengthy, detailed explanation that would likely be subject to misunderstanding anyway.  So he tried to cut it into a bite-sized nugget, for which he was publicly smacked.

Shari Michels found her eight-inch spiked heels similarly uncomfortable running for civil court judge in Manhattan, earning her  an admonition from the Commission on Judicial Conduct.

Judicial candidates are held to higher standards of conduct than candidates for non-judicial office, and the campaign activities of judicial candidates are significantly circumscribed in order to maintain public confidence in the integrity and impartiality of the judicial system.

Don’t wobble in those heels, ya know.

Respondent’s campaign literature, which was widely disseminated and which respondent herself had reviewed prior to its distribution, was inconsistent with the ethical standards. Viewed in its totality, the literature was misleading in that it juxtaposed respondent’s photograph with that of another candidate, Rita Mella – who had not given permission for her likeness to be used by respondent’s campaign – and positioned the language “Endorsed by the New York Times” in such a way that it could be construed as referring to both candidates, when in fact respondent did not have the Times‘ endorsement.

Except the palm card was produced by the political clubs who nominated Michels, as well as Mella, for the post.  As for the Times‘ endorsement, only two facts make the conclusion hard to swallow. First, there’s no finding (nor could there be) that it was misleading, but merely that it “could be construed” that way. That’s an awfully wiggly line to hang a candidate.

But the more significant issue comes from the card itself.  There just isn’t anything misleading about it.  It’s about as clear as one can get on a palm card that the Times’ endorsement refers to Mella rather than Michels. This was the conclusion of the hearing examiner, rejected by the majority, and called out in the Commission’s dissent, which reminds the prigs of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, holding that even judicial candidates have First Amendment rights.

Of course, we all would prefer judicial campaigns to be elevated, substantive and non-political. However, we cannot characterize as prohibited political activity any conduct which is part and parcel of the very democratic process by which we elect most of our judges. The Supreme Court in White said it this way: “If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process… the First Amendment rights that attach to their role”

Rights? Make them walk the street and then give them rights? What’s next?

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

No one suggests that judicial candidates should be slinging mud, or wrestling in it for that matter, since it’s nearly impossible to get the mud stains out of the hot pants.  But when you demand that they run in contested elections, run on party lines, run at the behest of political clubs who control their concerted campaigns for office, when the hell do you expect?

As the dissent states, judicial election campaigns create a quandary, a conflicting demand that reduces this futile exercise in Jacksonian populism to either a beauty pageant or a party line vote. Either way, it’s a big, old joke, except to the people who are constrained to shake hands, kiss babies, and hand out ugly palm cards because nobody has a clue whether they would make a good judge or not.

So the prigs will smack them for wiggling the hips seductively as they walk down the boulevard?  It’s the system you demand of them, and “it ain’t pretty.”  Either accept it and give the candidates reasonable and fair latitude to do as you demand, or get rid of it if it’s too ugly and adopt a system of appointments,  But don’t blame the candidates for failing to meet your smarmy notions of dignity.  There’s no dignity involved in running for judicial office.

H/T  Eugene Volokh and Steve Magas