Oops! I Said It Again: Judicial Codes of Conduct, the First Amendment, and the Definition of Impartiality

Georgetown Journal of Legal Ethics, The, Summer 2004 by Cutler, Joe

INTRODUCTION

States with elected judges face a real danger of politicization in their judiciaries without codes of judicial conduct. Placing limitations on what judges may do or say helps maintain the independence and impartiality of the judiciary.1 The Model Code of Judicial Conduct ("Model Code") aims to guide judges by delineating appropriate judicial and extra-judicial behavior and enforcing common standards of judicial conduct.2 As judicial election campaigns gain notoriety, the stakes rise.3 Over the past decade, campaign contributions in state judicial elections rose considerably, jumping sixty-one percent between 1998 and 2000.4 Recently, the Supreme Court invalidated a clause of Minnesota's judicial code that prohibited judicial candidates from announcing their views on issues that they might face as sitting judges.5 Allowing judges to speak more freely about disputed issues will shift the nature of judicial elections from character competitions to more combative political campaigns where the candidates polarize over hot issues.6 Campaigns will become more politicized than ever as judges openly debate the issues.7 Such newfound freedom has already tempted some judges to push the envelope by initiating facial challenges to other provisions of the Model Code*

If more challenges to the traditional codes of judicial conduct succeed, our conception of judicial ethics may change drastically. The American Bar Association ("ABA") argues that un-tethering judges from codes of conduct will essentially destroy the ability of elected judges to remain impartial.9 On the other hand, the First Amendment protects the rights of citizens to participate in the political process, and to speak freely about political issues.10 So, what is the proper balance between the constitutional liberties of judges as citizens and the rights of litigants to a fair trial? The Supreme Court, in Minnesota v. White, defined impartiality as a lack of bias for or against any party to the proceeding.11 The Court refused to define impartiality as neutrality on particular issues.12 The White decision clearly draws a distinction between issue-neutrality and party-neutrality when applying its constitutional analysis to provisions of the Model Code. After White, the ABA revised its definition of impartiality, but failed to incorporate the issue/party distinction-settling instead for an amalgamation of the two. As more cases challenging current restrictions on judicial conduct rise through the court system, the issue/party distinction offers a clear methodology for determining the constitutionality of Model Code provisions. In assessing whether Model Code provisions will survive, despite their intrusion into space traditionally protected by the First Amendment, the Supreme Court's new definition of impartiality-not the ABA's revision-seems most capable of distinguishing the unconstitutional provisions from the legitimate ones.

I. A BRIEF HISTORY OF THE EVOLUTION OF THE MODEL CODE OF JUDICIAL CONDUCT

A. ORIGINS OF THE ABA MODEL CODE

At the turn of the 20th century, the popularity and use of elections to select state judges increased.13 In response to the danger of politicization of the judiciary during and after elections, the ABA promulgated the Model Code.14 Originally, the 1908 version of the code aimed to admonish and guide the actions of judges as they attempted to balance their duties of impartiality and independence with the need to elicit support for their campaigns.15 The ABA did not urge states to implement any form of formal disciplinary structure.16 The Model Code served to inform and admonish judges and practitioners of the ideal standards of judicial conduct.17

B. FROM GUIDELINE TO ENFORCEMENT: THE MODEL CODE GROWS TEETH

In 1972, the ABA revamped the Model Code to give it teeth-changing its focus from admonishment to enforcement.18 In general, this version of the Model Code addressed three main areas of judicial conduct: speech, political activity, and campaign fundraising.19 The new version of the Model Code did not enforce the norms itself, but encouraged state courts to implement an accountability structure for enforcing the norms expressed in the Model Code.20 States responded to the call, forming Judicial Discipline Committees and other administrative structures that formalized a reporting and sanctioning regime to curb abuses by judicial candidates and sitting judges.21 The Canons of the old Model Code contained broad prohibitions against political speech and political participation.22 States put the Canons into effect through rules prohibiting particular behavior and conduct.23 These state-level judicial efforts attempted to balance the partisan and factional nature of elections with the need for a judiciary that both appears and acts impartially.

C. CLARIFICATION AND NUANCE: THE 1990 REVISION

After nearly two decades, the ABA again revised its Model Code. The 1990 revision clarified formerly vague definitions and sought a crisper division between the mandatory provisions and the aspirational standards of the Model Code.24 The new Model Code contained a more detailed preamble that further emphasized the enforceability of the Model Code, and reinforced its "role in the body of laws."25 While the new more nuanced version of the Model Code might initially seem less rigid, the revision Committee intended to improve enforceability of judicial ethics through clarity rather than breadth in the Model Code's Canons.26 In the 1990 version of the Model Code, Canon 5 contains the bulk of provisions relating to the First Amendment rights of judges and judicial candidates. The Model Code divides Canon 5 into four main categories: