FILED Sanders County Republican Central Committee v. Bullock, 12-35543 SEP 17 2012
MOLLY C. DWYER, CLERK SCHROEDER, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
This decision is a big step backwards for the state of Montana, which we all
agree has a compelling interest in maintaining an independent and impartial
judiciary. The majority ignores the practical effects of its decision on that interest
when it takes a formulaic approach to First Amendment doctrine. This is the first
opinion to hold that even though a state has chosen a non-partisan judicial selection
process, political parties have a right to endorse candidates. This means parties can
work to secure judges’ commitments to the parties’ agendas in contravention of the
non-partisan goal the state has chosen for its selection process.
The Supreme Court in Republican Party of Minn. v. White (White I), 536
U.S. 765 (2010) recognized that judges have a life beyond the bench and make
statements throughout their legal careers on political and legal issues. “[J]udges
often state their views on disputed legal issues outside the context of
adjudication—in classes that they conduct, and in books and speeches.” Id. at 778.
Such activity differs from partisan endorsements. Judges’ public discussion of
their legal and political values therefore poses less of a threat to judicial open-
mindedness than do endorsements by political parties.
Partisan endorsements do not protect the candidate’s right to speak that was
at the core of White I. Nor is endorsement necessary to protect the rights of the members and leaders of political parties to express judicial candidate preferences
since they can lawfully endorse in their individual capacities.
This is thus an unwarranted extension of White I. This and other such
extensions of White I lead to disruptions and distortions in the non-partisan
processes states have developed in order to prevent judicial elections from turning
on promises to decide cases in ways that will get votes. Thirty-nine states have
judicial elections, and nearly all have enacted laws to treat judicial elections
differently from political elections. American Judicature Society, Judicial
Campaigns and Elections: Campaign Conduct, available at
http://www.judicialselection.us/judicial_selection/campaigns_and_elections/campa
ign_conduct.cfm?state=. The Conference of Chief Justices has decried the trend
toward eliminating these distinctions. Conference of Chief Justices, Declaration:
Judicial Elections are Different than Other Elections (2007), available at
http://ccj.ncsc.dni.us/JudicialSelectionResolutions/DeclarationJudicialElections.ht
ml. The Conference’s Declaration, quoting Chief Justice Roberts in his
confirmation hearing, states, “[j]udges are not politicians. They cannot promise to
do certain things in exchange for votes.”
The Supreme Court in White I held only that the state violated the First
Amendment when it prohibited “candidates for judicial election from announcing
2 their views on disputed legal and political issues.” 536 U.S. at 788. Today’s
decision extends this protection to political parties’ endorsements in previously
non-partisan elections. The result is to encourage a judiciary dependent upon
political alliances. Political endorsements place judges in a position of
indebtedness to “powerful and wide-reaching political organizations that can make
or break them in each election cycle.” Republican Party of Minn. v. White (White
II), 416 F.3d 738, 768 (8th Cir. 2005) (Gibson, J., dissenting). Partisan politics are
particularly pernicious because parties serve as “natural bundling agents that
coordinate sprawling political coalitions across all types of policy domains and
venues.” See Michael S. Kang & Joanna M. Sheperd, The Partisan Price of
Justice: An Empirical Analysis of Campaign Contributions and Judicial
Decisionmaking, 86 N.Y.U. L. Rev. 69, 107 (2011). Failing to recognize this, the
majority and the Eighth Circuit in White II err in concluding that political parties
are just another interest group. See 416 F.3d at 755.
Political endorsements, much more than judges’ discussion of issues, lead to
political indebtedness, which in turn has a corrosive impact on the public’s
perception of the judicial system. See Wolfson v. Brammer, 822 F. Supp. 2d 925,
931 (D. Ariz. 2011) (“Public confidence in the independence and impartiality of
the judiciary is eroded if judges or candidates are perceived to be subject to
3 political influence.”); Siefert v. Alexander, 608 F.3d 974, 985–86 (7th Cir. 2010)
(“Due process requires both fairness and the appearance of fairness in the
tribunal.”); see also Cox v. Louisiana, 379 U.S. 559, 565 (1965) (upholding state
statute prohibiting picketing outside a courthouse because of the state’s interest in
protecting “against the possibility of a conclusion by the public under these
circumstances that the judge’s action was in part a product of intimidation and did
not flow only from the fair and orderly working of the judicial process”); United
States Civil Service Commission v. National Association of Letter Carriers, 413
U.S. 548, 565 (1973) (upholding the Hatch Act’s ban on partisan activity by
federal civil servants because “it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they
appear to the public to be avoiding it . . . .”). Recognizing this, the Seventh Circuit
has held that a ban on judges’ endorsements of political candidates is not subject to
strict scrutiny and is constitutional. Siefert, 608 F.3d at 986 (“While White I
teaches us that a judge who takes no side on legal issues is not desirable, a judge
who takes no part in political machinations is.”).
The detrimental effects of the parties’ ability to endorse in judicial elections
is multiplied by their ability to engage in expenditures on behalf of or in opposition
to judicial candidates. See Citizens United v. Fed. Elec. Comm’n., 130 S. Ct. 876
4 (2010). The fact that political parties can back up their endorsements with
significant sums of money threatens to further erode state judges’ ability to act
independently and impartially. See Brennan Center for Justice, The New Politics
of Judicial Elections 2009–10 (2011), available at
http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics201
0-Online-Imaged.pdf.
In holding that Montana has a less restrictive means of structuring its
judicial selection process, the majority fails to comprehend that this would take
more than a simple tweak of the system. The majority presents judicial
appointment as a less restrictive means of achieving the state’s admittedly
compelling interest in an impartial judiciary and one that does not implicate the
First Amendment. See White I, 536 U.S. at 788–92 (O’Connor, J., concurring).
This alternative, however, is more theoretical than realistic. Despite dramatic
changes in judicial election processes, states have been reluctant to shift to judicial
appointments.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Sanders County Republican Central Committee v. Bullock, 12-35543 SEP 17 2012
MOLLY C. DWYER, CLERK SCHROEDER, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
This decision is a big step backwards for the state of Montana, which we all
agree has a compelling interest in maintaining an independent and impartial
judiciary. The majority ignores the practical effects of its decision on that interest
when it takes a formulaic approach to First Amendment doctrine. This is the first
opinion to hold that even though a state has chosen a non-partisan judicial selection
process, political parties have a right to endorse candidates. This means parties can
work to secure judges’ commitments to the parties’ agendas in contravention of the
non-partisan goal the state has chosen for its selection process.
The Supreme Court in Republican Party of Minn. v. White (White I), 536
U.S. 765 (2010) recognized that judges have a life beyond the bench and make
statements throughout their legal careers on political and legal issues. “[J]udges
often state their views on disputed legal issues outside the context of
adjudication—in classes that they conduct, and in books and speeches.” Id. at 778.
Such activity differs from partisan endorsements. Judges’ public discussion of
their legal and political values therefore poses less of a threat to judicial open-
mindedness than do endorsements by political parties.
Partisan endorsements do not protect the candidate’s right to speak that was
at the core of White I. Nor is endorsement necessary to protect the rights of the members and leaders of political parties to express judicial candidate preferences
since they can lawfully endorse in their individual capacities.
This is thus an unwarranted extension of White I. This and other such
extensions of White I lead to disruptions and distortions in the non-partisan
processes states have developed in order to prevent judicial elections from turning
on promises to decide cases in ways that will get votes. Thirty-nine states have
judicial elections, and nearly all have enacted laws to treat judicial elections
differently from political elections. American Judicature Society, Judicial
Campaigns and Elections: Campaign Conduct, available at
http://www.judicialselection.us/judicial_selection/campaigns_and_elections/campa
ign_conduct.cfm?state=. The Conference of Chief Justices has decried the trend
toward eliminating these distinctions. Conference of Chief Justices, Declaration:
Judicial Elections are Different than Other Elections (2007), available at
http://ccj.ncsc.dni.us/JudicialSelectionResolutions/DeclarationJudicialElections.ht
ml. The Conference’s Declaration, quoting Chief Justice Roberts in his
confirmation hearing, states, “[j]udges are not politicians. They cannot promise to
do certain things in exchange for votes.”
The Supreme Court in White I held only that the state violated the First
Amendment when it prohibited “candidates for judicial election from announcing
2 their views on disputed legal and political issues.” 536 U.S. at 788. Today’s
decision extends this protection to political parties’ endorsements in previously
non-partisan elections. The result is to encourage a judiciary dependent upon
political alliances. Political endorsements place judges in a position of
indebtedness to “powerful and wide-reaching political organizations that can make
or break them in each election cycle.” Republican Party of Minn. v. White (White
II), 416 F.3d 738, 768 (8th Cir. 2005) (Gibson, J., dissenting). Partisan politics are
particularly pernicious because parties serve as “natural bundling agents that
coordinate sprawling political coalitions across all types of policy domains and
venues.” See Michael S. Kang & Joanna M. Sheperd, The Partisan Price of
Justice: An Empirical Analysis of Campaign Contributions and Judicial
Decisionmaking, 86 N.Y.U. L. Rev. 69, 107 (2011). Failing to recognize this, the
majority and the Eighth Circuit in White II err in concluding that political parties
are just another interest group. See 416 F.3d at 755.
Political endorsements, much more than judges’ discussion of issues, lead to
political indebtedness, which in turn has a corrosive impact on the public’s
perception of the judicial system. See Wolfson v. Brammer, 822 F. Supp. 2d 925,
931 (D. Ariz. 2011) (“Public confidence in the independence and impartiality of
the judiciary is eroded if judges or candidates are perceived to be subject to
3 political influence.”); Siefert v. Alexander, 608 F.3d 974, 985–86 (7th Cir. 2010)
(“Due process requires both fairness and the appearance of fairness in the
tribunal.”); see also Cox v. Louisiana, 379 U.S. 559, 565 (1965) (upholding state
statute prohibiting picketing outside a courthouse because of the state’s interest in
protecting “against the possibility of a conclusion by the public under these
circumstances that the judge’s action was in part a product of intimidation and did
not flow only from the fair and orderly working of the judicial process”); United
States Civil Service Commission v. National Association of Letter Carriers, 413
U.S. 548, 565 (1973) (upholding the Hatch Act’s ban on partisan activity by
federal civil servants because “it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they
appear to the public to be avoiding it . . . .”). Recognizing this, the Seventh Circuit
has held that a ban on judges’ endorsements of political candidates is not subject to
strict scrutiny and is constitutional. Siefert, 608 F.3d at 986 (“While White I
teaches us that a judge who takes no side on legal issues is not desirable, a judge
who takes no part in political machinations is.”).
The detrimental effects of the parties’ ability to endorse in judicial elections
is multiplied by their ability to engage in expenditures on behalf of or in opposition
to judicial candidates. See Citizens United v. Fed. Elec. Comm’n., 130 S. Ct. 876
4 (2010). The fact that political parties can back up their endorsements with
significant sums of money threatens to further erode state judges’ ability to act
independently and impartially. See Brennan Center for Justice, The New Politics
of Judicial Elections 2009–10 (2011), available at
http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics201
0-Online-Imaged.pdf.
In holding that Montana has a less restrictive means of structuring its
judicial selection process, the majority fails to comprehend that this would take
more than a simple tweak of the system. The majority presents judicial
appointment as a less restrictive means of achieving the state’s admittedly
compelling interest in an impartial judiciary and one that does not implicate the
First Amendment. See White I, 536 U.S. at 788–92 (O’Connor, J., concurring).
This alternative, however, is more theoretical than realistic. Despite dramatic
changes in judicial election processes, states have been reluctant to shift to judicial
appointments. See Roy A. Schotland, New Challenges to States’ Judicial
Selection, 95 Geo. L. J. 1077, 1081–82 (2007). As the American Judicature
Society has noted, no state in the past decade, since the Court’s decision in White I,
has used its democratic process to shift away from judicial elections. See
American Judicature Society, Chronology of Successful and Unsuccessful Merit
5 Selection Ballot Measures, available at
http://judicialselection.us/uploads/documents/Merit_selection_chronology_1C233
B5DD2692.pdf. “[A] generation of experience . . . makes it clear that elections
will stay in many and perhaps all of the states that have that system.” Conference
of Chief Justices, supra. In sum, a shift away from judicial elections is not a
realistic alternative in states that have chosen judicial elections.
Today’s decision is another step in the unfortunate slide toward erasing the
fundamental distinctions that states have created between their selection processes
for judicial offices and political offices. These distinctions are foundational to
states’ abilities to maintain separation of powers between the branches of
government. White I, 536 U.S. at 803–04 (Ginsburg, J., dissenting) (“Whether
state or federal, elected or appointed, judges perform a function fundamentally
different from that of the people’s elected representatives. . . . The ability of the
judiciary to discharge its unique role rests to a large degree on the manner in which
judges are selected.”). The Supreme Court’s decision in White I was not intended
to collapse these differences. The Court said, “[w]e neither assert nor imply that
the First Amendment requires campaigns for judicial office to sound the same as
those for legislative office.” Id. at 783.
The inevitable impact of increasing partisanship, coupled with the potential
6 for increasing volumes of monetary contributions, serves only to erode the
perceived and actual fairness of litigation in the state courts. These are the
unfortunate and unforeseen consequences of the majority’s unwarranted extension
of White I, especially when viewed in the light of Citizens United.
In my view, the Republican Central Committee should not succeed on the
merits of its argument that the ban on political parties’ endorsements is
unconstitutional. I therefore respectfully dissent and would affirm the denial of a
preliminary injunction.