State rules governing what candidates for judge can say and do have been under attack from the right for almost two decades. In 2002, the U.S. Supreme Court voided parts of Minnesota’s campaign conduct code. Since then, courts have struggled to balance the public’s interest in having an independent judiciary against the First Amendment rights of candidates to express their political views.
U.S. District Judge Amul Thapar of Kentucky is the latest to try to thread that needle.
On May 12, Thapar upheld Kentucky’s rules that prohibit judges and would-be judges from knowingly lying, serving as leaders of political parties or endorsing political candidates. It would have been shocking had he overturned those rules, which, as he found, are clear, prevent judges from becoming political bosses and safeguard the perception of an impartial judiciary.
Thapar struck down other rules aimed at keeping partisan politics out of Kentucky’s nonpartisan judicial races. He overturned the ban on judges giving money to political parties and campaigns, and he said that it’s all right for judges to advertise themselves as the Republican or Democrat in a race even though parties don’t nominate judicial candidates in Kentucky.
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He also struck down as unconstitutionally vague a rule against judicial candidates making “misleading statements” either “knowingly or with reckless disregard for the truth.” Maybe that rule’s wording needs work. But Kentuckians have a compelling interest in preserving the rule’s intent, which is to keep judicial campaigns from sinking into mud-fests with candidates hurling incendiary half-truths at each other.
The state Supreme Court, which establishes the judicial conduct rules, should nudge the Judicial Conduct Commission to defend the rules before the Sixth U.S. Circuit Court of Appeals.
After all, as Thapar wrote, the Sixth Circuit has already recognized Kentucky’s compelling interest in “diminishing reliance on political parties in judicial selection.” It nonetheless struck down a rule against judge candidates revealing their party affiliation.
Last year, the U.S. Supreme Court said the choice to elect judges, as 39 states do, does not compel those states “to compromise public confidence” in their judges’ integrity. Chief Justice John Roberts broke with the conservatives to uphold Florida’s prohibition on judicial candidates directly soliciting contributions. Roberts wrote: “The public may lack confidence in a judge's ability to administer justice without fear or favor if he comes to office by asking for favors.” Amen.
Two of the plaintiffs who were seeking to strike down the ban on solicitations — Robert Winter Jr. and Cameron Blau — are also plaintiffs in the case in which Thapar ruled and have lost races for judgeships in Northern Kentucky. Blau told Thapar that he wants to run for district judge in 2018 and ask the Campbell County Republican Party to endorse him and that he also wants to host Republican fundraisers.
Also challenging Kentucky’s judicial campaign rules is Allison Jones, who was appointed to the Court of Appeals by Gov. Steve Beshear and elected in 2014. The Judicial Conduct Commission is considering complaints against all three plaintiffs, but has not ruled, which makes the disputes a bit theoretical.
Here’s the realpolitik: Money pouring into judicial races, especially state Supreme Court races, from special interests and political parties is soaring. The big donors are looking for favorable rulings not impartial justice. Fortunately, Kentucky has been mostly immune to this trend. Also, Kentucky judge candidates by and large are voluntarily conducting their campaigns within traditional standards even when federal courts have vacated them.
Kentucky should do all it can to protect the judicial branch of government from raw, partisan politics because, as Thapar aptly wrote, “the judiciary collapses if the public loses faith in its integrity.”