Judicial elections are different; candidates shouldn’t compromise themselves, and shouldn’t mislead voters

By Charles Boteler, Chair, Kentucky Judicial Campaign Conduct Committee Inc.

In elections by districts across the state, Kentuckians will select in November six judges for family court, three for circuit court, five district court judges, and one justice for the Kentucky Supreme Court. We have selected our state judges in Kentucky by popular election since 1850. Since 1976 we have elected judges in non-partisan elections.

Judicial elections present problems that are not common in elections for the legislative and executive branches of government. Candidates for legislator, mayor, governor, or president typically campaign on how they will address specific issues. Campaign platforms in these races are the norm and entirely proper.

Issue-oriented campaigns for judicial office, however, create troublesome possibilities. For instance, judicial independence requires that a judge be able to approach each case without regard to partisan connections, and not limited to pre-determined opinions that tend to foreclose a full consideration of all the issues and views that may be present in a real case that comes before a judge for adjudication. In short, a judge should be guided only by a reasoned application of the law to the facts, and a determination that is made only when the case is heard and decided.

One attempt to counter the problem created by popular judicial elections has been the use of ethics codes that limited the speech that judicial candidates could use. Increasingly, such codes have been determined to conflict with the free-speech clause of the First Amendment to the U.S. Constitution. In response to a case decided by the Supreme Court of the United States in 2002, a group of Kentucky citizens incorporated the Kentucky Judicial Campaign Conduct Committee in 2005.

The KJCCC is a non-partisan, non-governmental group of citizens from across the Commonwealth whose mission is to ensure that judicial campaigns in Kentucky promote an independent and impartial judiciary.

Judicial campaign speech has become increasingly untethered to state-enforced campaign-conduct codes. Most recently, the Sixth Circuit Court of Appeals largely affirmed a decision by Judge Amal Thapar of the Eastern District of Kentucky, striking down additional portions of Kentucky’s judicial campaign restrictions.

Though more free speech in judicial elections may be healthy in many respects, the tension between popular election and judicial independence and impartiality is left unresolved. The KJCCC believes that judicial candidates can make statements in their campaigns that may limit their independence and may impact their ability to decide cases properly and fairly. Likewise, misleading, unfair, and undignified campaigning, though constitutionally permissible as free speech, may still impair the independence, competence, and integrity of Kentucky’s judicial branch.

Therefore, the KJCCC continues to ask judicial candidates to refrain from waging campaigns that utilize unfair, misleading, and excessively partisan tactics. We will continue to comment if a judicial candidate campaigns in such a way, because we believe such campaigns harm our legal system and society.

In addition, we ask voters to exercise their utmost care and good judgment to make sure that Kentucky selects a talented and independent judiciary. Most judicial decision-making does not involve the hot button, ideological disputes that often divide society. What a judicial candidate might opine about abortion, same sex marriage, or textualism in constitutional interpretation will have little, if any, relevance to the day-to-day work of a Kentucky judge. A judicial candidate’s knowledge of various areas of law, the willingness to consider all positions with an open mind, a commitment to be an impartial umpire; these are the qualities we need in our judges.

Democracy requires the efforts of all citizens. Judicial candidates committed to upholding high standards of independence, fairness, and integrity will serve us well. Likewise, Kentucky voters must demand high standards in their judicial candidates. Together we can ensure that the Commonwealth has the kind of judiciary we all deserve.