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BENCH BLOG: Elections don’t turn judges into politicians

By: Jean DiMotto//May 18, 2015

BENCH BLOG: Elections don’t turn judges into politicians

By: Jean DiMotto//May 18, 2015

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected].

In a surprising decision delivered by Chief Justice John Roberts, the U.S. Supreme Court upheld state rules forbidding judicial candidates from personally asking donors for campaign money.

The case arose in Florida, where, like Wisconsin, there is a Code of Judicial Conduct applicable to both judges and judicial candidates forbidding them from soliciting campaign donations. Nonetheless, in seeking a county judgeship in Florida, the ultimately unsuccessful candidate Lanell Williams-Yulee sent a letter to local voters announcing her candidacy and asking for contributions to her campaign. She also posted the letter on her campaign website.

Florida Supreme Court’s decision

Not only did Yulee lose the election but the Florida Bar filed a complaint against her for violating the canon of the Code prohibiting candidates from soliciting money for their campaigns. Yulee asserted that her asking for campaign donations was protected, as speech, under the First Amendment.

The Florida Supreme Court disagreed. Acknowledging that the canon “clearly restricts a judicial candidate’s speech,” the court nonetheless found that it furthers Florida’s compelling interest in “preserving the integrity of (its) judiciary and maintaining the public’s confidence in an impartial judiciary.”

The court found that personal solicitations of campaign money, even by mass mailings, create an appearance of impropriety and undermine the public’s perception of judicial impartiality.

U.S. Supreme Court opinion

Roberts together with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan formed the majority. Citing the Magna Carta, the majority explained that because judges are “charged with exercising strict neutrality and independence, (they) cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”

Public confidence in the judiciary is grounded in the Third Branch’s unique place in government. Quoting Alexander Hamilton, the court said the judiciary “has no influence over either the sword or the purse; … neither force nor will but merely judgment.” Accordingly, the judiciary’s authority relies on “the public’s willingness to respect and follow its decisions.”

Thus, the public’s perception of judicial integrity is of utmost importance and a compelling state interest. Observing that most judicial campaign donors are lawyers and litigants, the court found “the mere possibility” that judges might be motivated to decide cases out of a desire to repay campaign contributions would be enough to undermine confidence in the judiciary.

Just because some judges are elected to the bench, that does not mean they are politicians. As Ginsburg explains in her concurrence, “Unlike politicians, judges are not expected to be responsive to the concerns of constituents. Instead it is the business of judges to be indifferent to popularity.” In fact, most judges, including those in Wisconsin, take an oath to administer justice “without respect to persons.”

The court noted the difference between a campaign’s soliciting money and a candidate’s personally doing so. “The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and does so in a way that solicitation by a third party does not.”

Even though a judicial candidate who has received contributions through third parties can still learn the identities of the donors and write them thank you notes, this does not subvert the rationale for curbing personal solicitations of campaign cash. Indeed, it shows only that the canon’s limitation on First Amendment speech is circumscribed.

Ginsburg’s concurrence

Ginsburg wrote: “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.”

She noted that multiple surveys since 2002 reveal that voters overwhelmingly believe judges are influenced by contributions. Moreover, 87 percent of voters recently stated that advertisements purchased by interest groups influence judges’ later decisions.

Accordingly, states should have “substantial latitude” to enact rules pertaining to campaign finance in judicial elections.


In a lengthy dissent, Justice Antonin Scalia, joined by Justice Clarence Thomas, argued that the Code’s canon is neither narrowly tailored nor serves a compelling state interest.

Using words like “twistifications,” Scalia asserted that the canon applies even when the donor has no chance of appearing in the judicial candidate’s court, and even when the donor is not vulnerable to judicial coercion. Consequently, the canon abridges the First Amendment.

Justice Anthony Kennedy also dissented. He argued that cutting off speech that consists of requests for campaign cash also leads to cutting off what could also be informative, educational speech about the merits of the candidate and the campaign.

The thrust of Justice Samuel Alioto’s dissent was that the canon is not narrowly tailored.


The decision is surprising given the lengths the U.S. Supreme Court has gone in recent years to regard various forms of campaign financing as protected speech. Citizens United comes readily to mind.

But the court distinguishes judicial elections from political ones, and sets a different standard for judicial elections given the judiciary’s existential dependence on the public’s perception of its integrity and impartiality.

While the court insists that judges are not politicians, it is hard not to think ironically about the Wisconsin Supreme Court. In recent weeks, it has suffered scathing reviews in local and national publications for its dysfunctionality and lack of apolitical processes. It is sad and frustrating to the bench, bar and electorate that the court has lost ground in being regarded as an institution of integrity and independence.


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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