For more information, contact Chair Anthony Wilhoit, 859-753-5599 or tony.wilhoit35@gmail.com
The Kentucky Judicial Campaign Conduct Committee, which has
monitored campaigns in nonpartisan judicial elections for 16 years, is
concerned that such elections are becoming too partisan.
The committee is a private, nonprofit, nonpartisan
organization that was created to safeguard the integrity of the judiciary in Kentucky
judicial elections. It was formed partly in response to court decisions that
expanded the First Amendment freedoms of judicial candidates, and the prospect
of campaigns that made nonpartisan judicial elections more like those for
executive and legislative offices, which are partisan.
The committee has focused its public statements on campaigns
that used false or misleading information to persuade voters, and believes its
work has discouraged such campaigning. Now it feels that judicial candidates who
emphasize their partisan affiliation are leading voters to think of judicial
elections as partisan, when they are not, and that this trend will undermine
the independence and thus the integrity of the judiciary.
Section 117 of the Kentucky Constitution provides for the
popular election of all Kentucky's state judges in non-partisan elections. Does
a nonpartisan election require nonpartisan campaigns? No. Federal courts have
ruled that nonpartisan elections cannot deny judicial candidates, or others, the
rights of free speech and association.
Kentucky and most other states that select judges by popular
election attempt to create safeguards that protect the independence and
integrity of their judiciaries. A rule of the Supreme Court of Kentucky says “A
judge or candidate for judicial office shall not engage in political or
campaign activity that is inconsistent with the independence, integrity, or
impartiality of the judiciary.” In its official comments on the rule, the Court
says, “The role of a judge is different from that of a legislator or executive
branch official, even when the judge is subject to public election. Campaigns
for judicial office should be conducted differently from campaigns for other
offices. . . . Public confidence in the independence and impartiality of the
judiciary is eroded if judges or judicial candidates are perceived to be
subject to political influence.”
Why should judicial elections be considered different from
other elections? The touchstone of the judiciary is its independence and
impartiality. Everyone in a free society should be able to expect their
disputes that end up in court to be decided by an impartial tribunal that is
not influenced by political affiliations.
It is natural for voters to want judges whose expressed views
or associations (political parties or special interest groups) indicate the
candidate is inclined to agree with the voter on how a particular issue should
be resolved. When judicial candidates emphasize their affiliation with a
political party, they erode long-held American principles of judicial
independence and fairness.
One example
That is why we are concerned that the campaign logo on the
website of state Rep. Joe Fischer for the Kentucky Supreme Court includes a
bottom line identifying him as “the conservative Republican” in the race; that
a June 29 post on his campaign Facebook page thanked the Oldham County
Republican Party for its “generous support;” and that on July 21, the page
shared a post by the Republican Party of Kentucky’s 4th District, quoting from a
public-radio news story:
“Joe Fischer, a Republican legislator known for his
anti-abortion and conservative stances, is taking on nine-year incumbent
Supreme Court Justice Michelle Keller in the race. Fischer, of Fort Thomas,
penned Kentucky’s ‘trigger law,’ which sought to automatically outlaw abortion
in the state after the U.S. Supreme Court struck down Roe v. Wade. He also
sponsored an amendment to the Kentucky constitution that would ensure no
abortion rights are guaranteed in the state’s fundamental document. A former
prosecutor and appellate judge, Keller was appointed to the northern Kentucky
Supreme Court district in 2013 by Democratic Gov. Steve Beshear.” The story did
not mention that Keller is registered to vote as an independent.
We believe candidates are responsible not only for their
social-media posts, but for comments that remain on those posts. On a July 28
post by the Fischer campaign there is a comment by Bernard Kunkel: “Joe Fischer
all the way. You must beat the pro-abort Andy Beshear loving Justice Michelle Keller.”
Kunkel provides no evidence for this assertion, but in a similar post on
another judicial campaign’s page, he cited a Court of Appeals decision that
upheld an Anderson Family Court ruling for a parent who wanted his children
vaccinated over the objections of the other parent, based on the use of aborted
fetal cells. That is the subject of a complaint pending before the committee,
which has advised the object of the complaint that it believes Kunkel’s
characterization is misleading if not inaccurate.
Judicial candidates have the First Amendment right to
publicize their political affiliations and their records in public service, and
some on our committee believe that unless the campaigning is misleading or
inaccurate, they should be able to exercise this right without questioning or
criticism from the committee – and that voters deserve to have information
about the candidates.
A majority of the committee believes the First Amendment
right to free speech is not compromised by speech questioning how that right is
exercised, and that in this case, Fischer places too much emphasis on his
partisan affiliation.
While he has every right to do that, we believe campaigning
as the Republican candidate in a nonpartisan election undermines the
independence and integrity of the judiciary. Not only can this mislead voters
into thinking they are voting in a partisan election, it strengthens Fischer’s
ties to his party. The primary objective of any political party is to gain and
maintain power by electing its candidates. The objective of a nonpartisan
election is to separate the judiciary from such entanglements.
A broader look
Looking more broadly at judicial elections in general, we
might do well to remember the example Abraham Lincoln set when considering whom
to appoint chief justice after the death of Chief Justice Roger Taney in 1864.
As biographer David Herbert Donald describes, "The President wanted to
name a man deeply versed in the law, rather than an ideologue or a
theorist," or as Lincoln put it, "The function of courts is to decide
cases, not principles." (Lincoln, p. 551.)
An equally important consideration in judicial selection is
that the great majority of work that a judge does is not the stuff of
headlines. This is even more reason voters should rely less on the political
affiliations and political views of the prospective judge. Deciding issues of
probate, evidence, personal injury, procedure, family law, and many other areas
of law rarely will be affected by whether the judge is a Republican or a Democrat.
Far more important than party affiliation in judicial
selection are such considerations as knowledge of the law, life experience,
fairness, the ability to listen, the willingness to put aside possible
prejudice and bias, patience, humility, and a firm commitment to the rule of
law.
We have no perfect way to select our judges. In Kentucky
voters have the challenge and responsibility to uphold the highest standards of
judicial selection. This responsibility is best served by informed and
objective determinations. We must not be sidetracked; We must keep our eyes on
the ball.
Background information about the Kentucky Judicial
Campaign Conduct Committee is at kyjccc.blogspot.com.