The Constitutionality of The 2003 Revisions To Canon 3 (E) of The Model Code of J

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THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072
104 Colum. L. Rev. 1072 Columbia Law Review May, 2004 Notes THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO CANON 3(E) OF THE MODEL CODE OF JUDICIAL CONDUCT Matthew J. Medina Copyright (c) 2004 Directors of The Columbia Law Review Association, Inc.; Matthew J. Medina In response to the United States Supreme Courts decision in Republican Party of Minnesota v. White, the American Bar Association (ABA) revised provisions of its Model Code of Judicial Conduct that restrict the campaign speech of candidates for judicial office. Concurrently, the ABA took the additional step of revising its rule requiring disqualification of a judge whose impartiality might reasonably be questioned to include situations where, as a candidate, a judge has made statements committing or appearing to commit her with respect to an issue or controversy in a case. This Note examines the constitutionality of the ABAs revised disqualification rule in light of White, concluding that the rule is unlikely to survive strict scrutiny. The Note then examines a similar provision in the Texas Code of Judicial Conduct, concluding that it is a constitutionally acceptable substitute for the ABAs revised rule. Introduction In August of 2002, the Texas Supreme Court issued an order amending certain provisions of the Texas Code of Judicial Conduct regulating the campaign conduct of Texass elected judiciary. 1 The court struck a provision that had prohibited a judicial candidate from making statements indicating her opinion on any issue that might come before the court to which election was sought, and narrowed a broad provision prohibiting a judicial candidate from making pledges or promises during a campaign. In addition to these changes to the Codes substantive rules, the court also promulgated interpretive commentary providing that a statement made during a campaign for judicial office . . . may cause a judges impartiality to be reasonably questioned in the context of a particular case and may result in recusal.2 The changes, recommended to the court by an advisory committee composed of law professors and practicing attorneys, were, by the courts own admission, hurriedly adopted in order to take effect prior to the November 2002 general election.3 At its annual meeting just under a year later, the American Bar Association (ABA) adopted amendments to its Model Code of Judicial Conduct, which for the first time in a century mandated, in certain instances, *1073 the disqualification 4 of an elected judge based on her campaign statements. The ABAs new rule requires disqualification of a judge who has made a public statement that commits, or appears to commit, the judge with respect to (i) an issue in the proceeding[,] or (ii) the controversy in the proceeding.5 The standing committee that proposed the amendments noted that while the Model Code already contained broad rules relating to disqualification, it was important to include a provision . . . that related directly to judicial campaign speech and that was designed to make the disqualification ramifications of prohibited speech violations explicit.6 In addition to the action taken by the ABA and the Texas Supreme Court, a number of other states also took steps to alert potential judicial candidates that their campaign statements may, in some instances, result in recusal or disqualification. 7 What, then, spurred this sudden and simultaneous interest in an area of judicial administration that, while unquestionably important, generally garners little public attention? The answer can be found in the United States Supreme Courts decision in Republican Party of Minnesota v. White, issued two months prior to the amendments to the Texas Code. 8 In White, the Court declared a provision of Minnesotas Code of Judicial Conduct that forbade a judicial candidate from announcing [his or her] views on disputed legal and political issues 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
to be an unconstitutional restriction on protected speech. 9 The Courts decision marks the first--and thus far only--occasion on which it has considered the constitutionality of restrictions placed *1074 on the campaign speech of judicial candidates in virtually each of the thirty-nine states that elects at least of some of its judges. Although political campaign speech lies at the core of the First Amendments protections, it has been argued for at least a century that campaigns for judicial office differ from campaigns for other elective offices, and that the nature and requirements of judicial office render unfettered campaign speech by judicial candidates inappropriate. 10 Permitting a judicial candidate to announce her views on disputed legal or political issues, to commit herself to certain positions with respect to those issues, or to make pledges or promises regarding her conduct on the bench, it is argued, runs counter to the ideals of judicial independence and impartial adjudication. 11 A candidate who engages in such conduct runs the risk, either in appearance or in fact, of binding herself to a certain position or becoming beholden to various interest groups once she is elected to the bench. This in turn harms litigants on the wrong side of an issue (while unfairly benefiting litigants on the right side) on which the judge has announced her views or taken a position. It also degrades the integrity of the judiciary generally. Accordingly, states have to varying degrees regulated and restricted judicial candidates campaign speech. While it is still too early to gauge Whites full effect, it is clear that, at a minimum, campaign speech restrictions 12 will be subject to increased scrutiny as more candidates rely on White in challenging the restrictions application to their own campaign conduct.13 Because most state judicial *1075 conduct codes are based on one of the ABAs model codes, 14 a number of states are likely to modify their codes in response to the amendments to the Model Code. 15 The disqualification rule and the Texas recusal standard16 provide two models for reform: States can either directly incorporate campaign-related disqualification requirements as operative rules of conduct, or they can follow Texass lead and adopt interpretive commentary that, while without operative effect, makes clear the connection between the rules governing judicial campaign conduct and those *1076 governing disqualification and recusal, and that can be used to guide recusal determinations for issues involving a judges campaign conduct.17 Such moves are not, however, without risks. In attempting to accomplish what amounts to an end-run around White, the disqualification rule and recusal standard may suffer from the same infirmities as the invalidated Minnesota provision. While not explicitly regulating candidates speech, the ABAs new rule nonetheless has that effect through its threat of ex post disqualification on the basis of a judges campaign statements. The Texas standard ultimately has the same effect, but only indirectly since it is not embodied in an operative rule. This Note thus addresses the issue of whether states may disqualify or recuse a judge on the basis of formerly prohibited campaign statements, and if so, what form such a rule must take to satisfy the First Amendment.18 Disqualification is an obvious alternative to broad--and unconstitutional--restrictions on a judicial candidates campaign speech; whether the ABAs new disqualification rule is itself a constitutional alternative is less obvious. Part I of this Note lays out the background history of judicial elections and the development of campaign speech restrictions. It then undertakes a general review of the law of judicial disqualification. Part II provides an overview of relevant First Amendment jurisprudence and looks at the Supreme Courts White decision and subsequent developments in the lower courts. Applying White, Part III.A examines the constitutionality of the ABAs disqualification rule, concluding that, as currently drafted, it is doubtful whether the rule can withstand a concerted First Amendment challenge. Part III.B then examines the Texas recusal standard, concluding that, unlike the ABAs rule, it draws the appropriate balance between judicial candidates First Amendment rights and the states interest in regulating the conduct of judicial campaigns. I. Judicial Elections, Campaign Speech Restrictions, and Judicial Disqualification A. A Brief History of Judicial Elections At the time of the adoption of the United States Constitution, which enshrined the method of nomination and confirmation of judges in the federal system,19 popular election of state judges was essentially unknown. *1077 20 Under the British system inherited by the American colonies, judges were appointed by and held office at the pleasure of the monarch. 21 Based on their experience with monarchical control over the colonial judiciary,22 the founders of the new republic deemed essential the need for judicial freedom from external controls.23 Once independence had been attained, each of the thirteen original states, like the federal system, used some form of appointive system for the selection of its judges, all of them indicating a determination to do away with the objectionable one-man control of the judiciary.24 Despite the preference for the appointive system found in the Federal Constitution, the move toward electoral selection of judges at the state level began soon after the Constitutions adoption in 1791 and accelerated rapidly during the nineteenth century. 25 The shift to popular election of judges was dramatic: Prior to 1845, each state entered the Union with a constitution providing for some sort of appointive system, whereas every state admitted between 1846 and Alaskas admission in 1956 provided for the election of at
least some of its judges.26 *1078 The movement was not without its critics, however, and [d]issatisfaction began to develop almost immediately after election of the judiciary came into vogue in the mid-1800s. 27 As criticism of popular election of judges grew louder in the early twentieth century, much of it coming from the academy and the bar, 28 a popular reform proposal emerged in 1914. The Missouri Plan, named after the first state to implement it, essentially combined the appointive and elective systems: Judges appointed by the governor from a list of candidates drawn up by a nonpartisan nominating commission would stand for periodic retention elections. 29 This merit selection and retention plan became the archetype for reforming state judicial election processes,30 with variations of the plan in use in many states today. 31 Overall, however, the reform movement had mixed success at best and was unable to overcome the electorates resistance to a wholesale abandonment of elective selection. 32 *1079 Ultimately, despite the criticism and reform efforts, the elective system remained--and continues to remain--the dominant method of judicial selection in the several states.33 B. Judicial Campaign Speech Restrictions Perhaps recognizing at some level that judicial elections were here to stay, the reformers also engaged in efforts to restrict the political activities of judges and attempted to limit the effects of politics on judicial electoral campaigns. This culminated in the Canons of Judicial Ethics, commissioned and adopted by the ABA in 1924. 34 Pursuant to Canon 30, which contained the first incarnation of the modern campaign speech restrictions, [a] candidate for judicial position should not make . . . promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power [and] he should not announce in advance his conclusions of law on disputed issues to secure class support.35 Recognizing that judicial candidates, like candidates to any other elected office, might make promises or other statements to the electorate in order to get elected, Canon 30 implicitly distinguished judicial elections by stating that judicial candidates should not engage in such traditional campaign behavior. At the outset, Canon 30 thus reflected the tension between the practice of electing judges on the one hand, and the perceived *1080 need to restrict the means that a judicial candidate might employ to become elected on the other. The ABA revised the Canons and in 1972 adopted the Code of Judicial Conduct. 36 While still using much of the language of Canon 30, the Code tightened the campaign speech restrictions considerably. Although new Canon 7(B)(1)(c) contained the same basic restrictions on pledges and promises as Canon 30, its announce clause now specifically prohibited a candidate from announcing his or her views on both disputed legal and political issues. 37 Furthermore, the restrictions applied to sitting judges campaigning for reelection (or election to higher judicial office) as well as to an incumbents challenger, regardless of whether she was also a sitting judge.38 In 1986, the ABA concluded that amendments to the Code were in order, and in August 1990 adopted the revised (and, once again, renamed) Model Code of Judicial Conduct.39 The Model Code contained major revisions to the campaign speech restrictions, the most significant substantive change being the replacement of the announce clause with a less rigid provision. 40 The Model Codes drafters feared *1081 that the announce clause as previously drafted would fail strict scrutiny analysis under a First Amendment challenge, and the new commitments clause was an attempt to narrow the restriction while retaining its effectiveness.41 Following White, however, the ABA concluded that even these narrowed speech restrictions were vulnerable to further First Amendment attacks42 and, in August 2003, adopted major revisions to the Model Codes campaign provisions. 43 The revisions to Canon 5 eliminate the commitments clause by folding it into the promises clause, 44 and attempt to narrow the combined restrictions scope by limiting its application only to certain pledges, promises or commitments.45 The Working *1082 Group on the First Amendment and Judicial Campaigns, which drafted the revised rules, believed the revisions to provide the appropriate construction to balance the First Amendment interest in vigorous and informative campaign speech with the compelling state interest in performing the duties of the judicial office impartially. 46 Although substantial future revisions to the Model Code are likely, 47 the conduct of future judicial campaigns will be significantly impacted if states amend their codes to bring them in line with the 2003 revisions. This will be due in no small part to the other significant change--the newly-strengthened disqualification rule in Canon 3(E)--in the 2003 amendments affecting judicial candidates campaign conduct. C. Judicial Disqualification Successful disqualification was historically quite difficult because judges at common law only could be disqualified if they 2012 Thomson Reuters. No claim to original U.S. Government Works. 3
had a pecuniary interest in a case.48 Over the years, as disqualification came to be recognized as a concomitant right to an impartial and fair adjudication of claims,49 the scope of that right broadened such that each jurisdiction now recognizes a variety of different grounds for disqualification. 50 The expansion of that right, however, has raised questions as to its proper scope, as well as concerns regarding its use--and abuse--as a strategic litigation tool. The states responses to these concerns have lacked coherence, resulting in case precedents that . . . are replete with inconsistencies, [and] which suggest the absence of a sound theoretical base and raise troubling questions as to precisely how much impartiality a litigant has the right to reasonably expect of a judge.51 Unless its constitution provides otherwise, each states highest court has inherent authority to regulate the state judiciary and establish rules to guide both lawyers and judges conduct. 52 Nearly every state has modeled its judicial conduct code on either the 1972 or 1990 ABA Codes *1083 on the view that uniform rules of judicial conduct across jurisdictions are both desirable and necessary; the Codes have therefore formed the basis of the modern disqualification right in nearly every jurisdiction. 53 While disqualification law throughout the United States is governed by a patchwork of statutory, constitutional, and judicially promulgated rules, the notion of impartiality is its driving force. The primary disqualification provision in the Model Code, mirrored by the federal disqualification statute, provides that a judge shall disqualify himself or herself in a proceeding in which the judges impartiality might reasonably be questioned.54 On its face this rule appears rather vague; however, the principle of impartiality it establishes has become a fundamental tenet of both federal and state disqualification provisions as well as both federal and state case law.55 In addition to the general rule that a judge must disqualify herself where her impartiality might reasonably be questioned, the Model Code as originally drafted lists four specific instances where disqualification is required. 56 The 2003 amendments add a provision requiring disqualification where a judge or judicial candidate makes any public statement *1084 that commits, or appears to commit, the judge with respect to an issue or controversy in a particular case. 57 Although at first blush the rule appears to apply broadly to public statement[s] generally, 58 the standing committee that drafted the rule stated that the new rule relate[s] directly to judicial campaign speech and drafted the rule to reflect[ ] the goals of the campaign speech restrictions. 59 Taken together with the campaign speech restrictions in Canon 5, 60 the 2003 revisions narrow the ex ante force of the campaign speech restrictions and at the same time extend their ex post reach so that a judge remains subject to discipline for the content of her campaign statements long after those statements have been made. While appearing to provide judicial candidates increased freedom to speak openly on the campaign trail, this freedom proves illusory in light of the new disqualification rule: A candidate who does choose to speak openly still runs the risk of subsequent disqualification *1085 when her statements commit or appear to commit her regarding the issues or controversy in a case over which she presides.61 II. Republican Party of Minnesota v. White and the Threat to Judicial Campaign Speech Restrictions A. The First Amendment and Political Speech The First Amendment, of course, guarantees an individuals right to engage in free and open speech and limits the states ability to infringe upon that right. 62 Not all types of speech are equal, however, and the Supreme Court has long adhered to the view that there are certain categories of expression that do not appreciably further the values underlying the [F]irst [A]mendment, and has therefore traditionally held that such categories of expression are either unprotected or only marginally protected by the Amendment. 63 Accordingly, while the Court affords few protections to speech that incites violence or violation of the law or is deemed obscene, political speech--considered to be at the very core of the First Amendment 64--receives the full panoply of the Amendments protections. If there is a hierarchy of protected speech, political speech occupies the top rung 65 because [d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.66 The free exchange of *1086 ideas provides special vitality to the process traditionally at the heart of American constitutional democracy--the political campaign.67 In a nation in which sovereignty is ultimately derived from the people, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. 68 The First Amendment thus has its fullest and most urgent application to speech uttered during a campaign for political office.69 The Supreme Court, however, has stated repeatedly that the First Amendments protections are not absolute 70 and has acknowledged that States may, and inevitably must, enact reasonable regulations for the conduct of political campaigns. 71 Despite its acceptance of campaign regulation and its recognition that such regulations may place burdens on speech, the Court nevertheless scrutinizes such regulations very closely in order to preserve the First Amendments core guarantees. While the degree of scrutiny with which the Court examines a regulation varies according to the character and magnitude of the burden imposed on speech, the inquiry is at its most exacting when a regulation severely and directly burdens speech. 72
In these instances the Court applies the familiar strict scrutiny test.73 The Court has recognized that a state has a compelling interest in the preservation of the integrity of its electoral process. 74 To that end, a state may permissibly prohibit a candidate from making promises to engage *1087 in illegal conduct or conduct that gives the appearance that the candidate is trying to buy votes. 75 Indeed, the Court has noted that to ensure that elections are fair, honest, and reasonably well-ordered, substantial regulation may be necessary. 76 However, a candidate for elective office does not lose her First Amendment protections upon the declaration of her candidacy. 77 A candidate has the same right as other citizens to engage in public discussion of important issues and vigorously campaign and advocate for her own election.78 For the very reason that public political discussion is necessary to educate voters so that they might cast an informed ballot, the First Amendment protects a candidates political speech with the understanding that, through the free exchange of ideas, the voters will choose between good ideas and bad, and between candidates for political office. 79 The courts have thus accepted the principle that in most instances the proper response to bad or harmful political speech is more speech. 80 B. Challenges to Campaign Speech Restrictions First Amendment challenges to judicial campaign speech restrictions 81 began in earnest in 1990,82 although earlier challenges date to the mid-1980s.83 As the attacks on campaign speech restrictions mounted *1088 over the course of the 1990s,84 it was not long before the federal circuit courts split on the validity of the announce clause. 85 By the end of 2001, several federal district courts, three federal appellate courts, and at least four state supreme courts had addressed the constitutionality of campaign speech restrictions. 86 While a few courts remained dedicated to preserving the restrictions, 87 the majority of courts either struck down the restrictions entirely or interpreted them narrowly to prevent constitutional infirmity. 88 With courts becoming increasingly hostile to judicial campaign speech restrictions, the Eighth Circuit bucked this trend by affirming a *1089 lower-court decision upholding Minnesotas announce clause.89 The Eighth Circuit concluded that Minnesotas asserted interests in guaranteeing the independence and impartiality of its judiciary were undeniably compelling--the fact that Minnesota had chosen to elect its judges did not mean that it had concomitantly abandoned its interest in an independent and impartial judiciary.90 As for the second prong of its strict-scrutiny analysis, the court adopted the district courts narrowing construction, 91 stating that, narrowly construed, the announce clause would still allow campaign discussion of a number of subjects highly relevant to a candidates qualification for office, as well as general discussions of case law and judicial philosophy outside the provisions scope. 92 Accordingly, the court concluded that the announce clause was narrowly tailored and therefore constitutional. 93 The United States Supreme Court, splitting five to four, reversed. 94 Authoring the majority opinion, Justice Antonin Scalia stated that the text of the announce clause95 as written prohibited a candidates mere statement of his current position, even if he does not bind himself to maintain that position after election. 96 Beginning with the states argument *1090 that the announce clause served the compelling interest of preserving the impartiality and appearance of impartiality of the states judiciary, Justice Scalia noted that the parties and the courts below had left the term impartiality undefined--a definition that was essential to properly conduct strict-scrutiny analysis.97 Justice Scalias opinion discussed three possible definitions of impartiality. Defining impartiality first as the lack of bias for or against either party to the proceeding, Justice Scalia concluded that the announce clause was barely tailored to serve that interest since it restricted speech regarding particular issues rather than particular parties. 98 A judge who, as a candidate, had taken a position on a particular issue might consistently rule against parties on the opposite side of the issue; this would result, however, not from bias or favoritism, but from evenhand[ed] application of the law as seen by the judge.99 Defining impartiality next as a lack of preconception in favor of or against a particular legal view, 100 Justice Scalia stated that this conception of impartiality would not be sufficient to ground a compelling interest since it was not only impossible to select judges lacking preconceptions about the law, but also completely undesirable. 101 Defining impartiality finally as openmindedness, Justice Scalia declared that [a]s a means of pursuing [that] objective . . . the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous. 102 Because statements made on the campaign trail are an infinitesimal portion of the positions members of the legal community take on legal issues, it was simply implausible to Justice Scalia that the announce clause could be justified as a means of guaranteeing a litigant at least some chance of persuasion. 103 Justice Scalia concluded his opinion by observing that [t]here is an obvious tension between the article of Minnesotas popularly approved constitution which provides that judges shall be elected, and the Minnesota Supreme Courts announce clause which places most subjects of interest to the voters off limits. 104 He conceded that there are strong arguments against 2012 Thomson Reuters. 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the practice of elective selection of judges, but concluded *1091 that the First Amendment does not permit [opponents of judicial elections] to achieve [their] goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.105 Accordingly, the majority held that under any definition of the term impartiality, the announce clause failed strict scrutiny and was unconstitutional. 106 Because White addressed the constitutionality of only the announce clause-- the most restrictive formulation of the campaign speech restrictions--its impact on other campaign speech restrictions is still unclear. 107 Thus far, federal courts have been more willing than state courts to apply White to invalidate speech restrictions other than the announce clause. 108 In a case decided only a few months after White, the Eleventh Circuit applied White to strike down Georgias misrepresentation clause, exhibiting in the process a surprising opposition to the general notion of restrictions on judicial campaign speech. 109 And in Spargo v. New York State Commission on Judicial Conduct, the District Court for the Northern District of New York also applied White in finding unconstitutional portions of New Yorks Code of Judicial Conduct that restrict judicial candidates ability to *1092 engage in political activity--provisions significantly dissimilar to the announce, commitments, or promises clauses.110 While these federal courts applied White to speech restrictions other than the announce clause, the state courts have been unwilling to do the same. The Florida Supreme Court held White inapplicable to the challenged promises clause and commitments clause in Floridas judicial conduct code on the ground that Whites holding is limited to the announce clause.111 Similarly, the New York Court of Appeals, in a pair of cases upholding the same provisions held unconstitutional in Spargo (as well as New Yorks promises clause), found White distinguishable. 112 Additionally, a number of states have reviewed their judicial conduct codes outside the context of litigation, and those without their own version of the announce clause have generally found their less-restrictive speech restrictions to be safe from attacks relying on White. 113 Thus, it is far from clear what Whites long-term effects with respect to the other campaign speech restrictions will be. III. The Disqualification Alternative to Campaign Speech Restrictions Given the uncertain scope of the White decision and the hostility that Justice Scalia directed at the notion of judicial campaign speech restrictions *1093 (to say nothing of the fact that the Justices were quite divided on the issue), the states and the ABA were left with the unpleasant task of evaluating and revising their judicial conduct codes to survive further constitutional attack--or scrapping them altogether--without a clear indication from the Court as to what extent it would allow the states to restrict judicial candidate speech. This task was made somewhat easier because, far from squarely holding that impartiality can never be a compelling interest, the majority opinion at least suggests the contours of an acceptably compelling definition of impartiality which would support some restrictions. 114 Although there is certainly still debate, given Whites analysis *1094 and subsequent interpretation by the courts and state judicial regulators, it appears that impartiality-properly defined--will continue to be accepted as a compelling interest for purposes of strict scrutiny. 115 The primary challenge to the campaign speech restrictions will, therefore continue to arise from the narrow-tailoring prong of strict scrutiny analysis.116 The ABA has attempted to resolve the narrow-tailoring problem by limiting the scope of its revised campaign speech rule to only certain pledges, promises, or commitments, rather than all pledges, promises, or commitments as under the 1990 formulation of the rule.117 In narrowing the rules reach, however, the ABA increased the opportunity for candidates to skirt the rule and engage in campaign conduct that, while viewed as objectionable, is not sanctionable under the narrowed rule. 118 *1095 The ABAs amendments attempt to address this problem with the addition of the new rule requiring a judges disqualification where her statements as a candidate commit or appear to commit her with respect to an issue or controversy in a proceeding such that her impartiality might reasonably be questioned. 119 This provision, therefore, essentially acts to fill the void left after narrowing the ex ante restrictions on candidate speech by providing an ex post threat of disqualification. Unfortunately, in adopting a provision designed to make the disqualification ramifications of prohibited speech violations explicit,120 the ABA has exposed the Code to challenges that the new disqualification rule impermissibly chills a candidates political speech by raising the possibility that, as a judge, the candidate will be disciplined for the content and the communicative impact of her statements in the form of disqualification. Because the rule appears to swee[p] in too much speech that is constitutionally protected,121 the rule is particularly vulnerable to an overbreadth challenge. 122 Moreover, because, as drafted, the rule is unclear as to precisely what speech will cause a candidates impartiality to be reasonably questioned and what speech will not, the rule may also be subject to challenges that it is void for vagueness. 123 This Part begins with a discussion of the ways in which the ABAs disqualification rule might be characterized, the effect of the rule, and its potential impact on judicial candidates campaign speech. It then examines the objections that the rule is overbroad and void for vagueness and therefore facially invalid as violating the First Amendment. Although the rule as currently drafted is both overbroad and vague, Part III.A concludes that it can be sufficiently narrowed to avoid constitutional
infirmity. Part III.B then takes up the Texas recusal standard and discusses its potential as a constitutionally acceptable alternative to the ABAs disqualification rule. *1096 A. Strict Scrutiny and the ABA Disqualification Rule 1. Possible Views of the Disqualification Rule: Direct vs. Incidental Burdens on Candidate Speech.--Generally, a rule can burden speech in one of two primary ways: either directly or incidentally. Simply put, a regulation directly burdening speech is one that targets speech or conduct for the purpose of regulating that speech or conduct, while a regulation incidentally burdening speech is primarily directed elsewhere but nonetheless burdens speech through its application or enforcement. 124 Such regulations are frequently either content based or content neutral, a distinction the Supreme Court has come to treat as a crucial one in First Amendment law.125 Content-based restrictions restrict speech because of its message, while contentneutral regulations restrict speech regardless of its message: 126 Content-based restrictions place direct burdens on speech because they target speech directly,127 while most content-neutral restrictions are seen as only incidentally burdening speech because they primarily target some conduct other than speech. 128 Acknowledging each type of regulations differing impact on speech, the Court subjects content-based restrictions to strict scrutiny, while subjecting content-neutral restrictions only to a form of intermediate scrutiny.129 Characterization of a regulation as either directly or incidentally burdening speech is crucial because the characterization will determine the standard of judicial scrutiny *1097 used in assessing the regulation. 130 Accordingly, characterization must play a central role in any constitutional analysis of the ABAs disqualification rule as well as in any conclusions as to its validity or invalidity. a. Direct Burdens.--In characterizing the announce clause, the Supreme Court observed that it both prohibits speech on the basis of its content and burdens a category of speech that is at the core of our First Amendment freedoms--speech about the qualifications of candidates for public office.131 Like the announce clause, the ABAs disqualification rule is a contentbased regulation: It distinguishes between favored and disfavored speech and restricts a judicial candidates speech on the basis of its ideas or the views expressed therein.132 The ABAs disqualification rule, however, does not burden candidate speech in the same fashion as the announce clause since, unlike the announce clause, it does not prohibit candidate speech ex ante. Instead, working in tandem with the revised speech restrictions in Canon 5, 133 the rule allows a candidate to engage in traditional political speech on the campaign trail (with, of course, significant exceptions 134), but warns that if she chooses to do so her ability to carry out her judicial function may be restricted in cases raising issues about which she has spoken. 135 Viewed as a replacement for more restrictive campaign speech restrictions, the disqualification rule can be characterized as directly burdening a judicial candidates campaign speech as a result of the chilling effect brought about by the rules threat of ex post sanction based on the content and communicative impact of the speech. Because this ex post threat exists, a candidate will simply refrain from making any statements *1098 that might open her up to future disqualification. 136 Viewed from this perspective, the rule would be subject to substantially the same inquiry as that given to the announce clause in White, i.e., strict scrutiny. With a credible possibility of disqualification in place, a candidate will likely hesitate before attempting to skirt the narrowed campaign speech restrictions lest she be subject to future disqualification. As candidates realize that their campaign statements may significantly impact the exercise of their judicial functions once they reach the bench, they will simply refrain from engaging in that sort of behavior or else suffer the wrath of discontented voters. 137 If the disqualification rule is rigorously enforced, it may have precisely the same effect as the announce clause. 138 The rule thus does an end-run around Whites central holding: It is targeted at precisely the conduct that the Court concluded was impermissibly prohibited by the announce clause.139 *1099 That the disqualification rule does not come into play until after speech has been uttered 140 should have no appreciable effect on the constitutional inquiry. Whether a regulation operates to prevent the utterance of speech or operates subsequently to punish the speaker for having uttered the speech, both chill protected speech. 141 Because it directly burdens protected speech, the disqualification rule must be narrowly tailored to serve a compelling state interest for it to be deemed constitutional. 142 The disqualification rule purportedly serves the state interest of judicial impartiality, 143 which, properly defined, is likely to be upheld as sufficiently compelling. 144 The rule founders, however, on the narrow-tailoring prong of the analysis because, as discussed below, it is impermissibly overbroad and vague.145 *1100 b. Incidental Burdens.--From another perspective, the rule can be characterized as only incidentally burdening campaign speech.146 Incidental effects doctrine involves regulations that do not facially regulate protected speech, but nevertheless have the effect of incidentally burdening protected speech through their application or enforcement. 147 Under this view, the rule is not directed at campaign speech per se but is instead intended to be part of the traditional regulation of judges to ensure orderly functioning of the judiciary. Although no unified constitutional doctrine of incidental burdens exists,148 the disqualification rule would still receive First Amendment scrutiny. But, because under this view it does no more 2012 Thomson Reuters. No claim to original U.S. Government Works. 7
than incidentally or indirectly burden speech *1101 through its application, the disqualification rule would receive less exacting scrutiny than would be received under the alternative view: Although it is concerned about the impact such regulations have on protected speech, the Court applies only intermediate scrutiny to such regulations in order to prevent the First Amendment from reaching too broadly and because nearly every law or regulation will impose an incidental burden on some protected interest.149 For this reason, the Court examines content-neutral regulations--regulations that incidentally burden speech--under the fourpart test articulated in United States v. OBrien.150 Unlike the strict scrutiny requirement that narrowly-tailored means be the least restrictive necessary to achieve the states interest, the Court has made clear that regulations placing incidental burdens on speech are held to a less stringent standard. 151 Instead, the Court has only required that there be no less restrictive means available that can achieve the same ends more efficiently.152 *1102 The ABA disqualification rule fails the third prong of the OBrien test: The rule is, in fact, related to the suppression of free expression by judicial candidates. The Working Group that drafted the rule determined that it was important to include a provision within the disqualification provisions of Canon 3 that related directly to judicial campaign speech. 153 The group went on to note that the rule is designed to make the disqualification ramifications of prohibited speech violations explicit and that the language of this provision reflects the goals of [the Canon 5 speech restrictions]. 154 Thus, even if the disqualification rule is viewed as simply a specific instance of when a judges impartiality might reasonably be questioned, unlike the other specific instances listed in Canon 3(E), the disqualification rule cannot satisfy the OBrien test because it is not unrelated to the suppression of free expression by judicial candidates. 155 In fact, the rule is explicitly motivated by the desire to regulate judicial candidates campaign speech. Accordingly, the rule is not eligible for the more relaxed scrutiny of the OBrien test and would be subject to strict scrutiny. 156 2. The Disqualification Rule and Narrow Tailoring.--As previously discussed, 157 the disqualification rule faces its most serious challenge from the narrow-tailoring prong of strict scrutiny analysis. As a content-based regulation, the rule must be tailored so that it does not unnecessarily circumscrib[e] protected expression.158 As it is currently drafted, the disqualification rule does not satisfy this requirement. In particular, the *1103 rule is vulnerable to challenges based on the traditional First Amendment overbreadth and vagueness doctrines. a. Overbreadth.--The ABA disqualification rule is vulnerable to an overbreadth attack.159 A law or regulation will be found to be unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated, 160 and no constitutionally adequate narrowing construction suggests itself. 161 First Amendment overbreadth doctrine represents a departure from the Courts usual standing rules insofar as it allows a litigant to challenge a statutes constitutionality on the ground that its application would impermissibly restrict the speech of third parties not before the court, even though the litigants own speech falls within the statutes constitutionally permissible reach. 162 Moreover, whereas the Court normally whittles away any invalid portions of an otherwise constitutional statute while leaving the remainder of the statute in place, 163 a finding that a statute or regulation is overbroad in the First Amendment context results in the regulations facial invalidation, with its enforcement prohibited unless a narrowing construction can be adopted that removes the regulations chilling effect on protected speech. 164 For an overbreadth challenge to succeed, the challenged regulation must target protected speech and be unsusceptible to attempts at narrowing the *1104 regulations reach to avoid its unconstitutional scope.165 Furthermore, the fact that a regulation is simply overbroad is not enough; the statute must be substantially overbroad, i.e., it must restrict significantly more speech than the Constitution allows to be controlled.166 The ABA disqualification rule fails overbreadth analysis. The rule applies to all judicial campaign speech that commits or appears to commit a candidate with respect to an issue or controversy in the proceeding such that her impartiality might reasonably be questioned.167 The rule thus sweeps into its reach all of a candidates campaign speech--speech to which the First Amendment has its fullest application--that could potentially be interpreted as appearing to commit the candidate with respect to a particular issue or controversy. While the general impartiality standard does serve to limit the scope of prohibited speech to any statement that appears to commit the candidate and raises doubts about her impartiality, this limiting standard does not go far enough because the rule still applies where the candidates impartiality might be reasonably questioned. Because virtually anything a candidate could say in a campaign might cause her impartiality to be questioned and might appear to commit her with respect to an issue or controversy, the disqualification rule sweeps too broadly. That is not to say, however, that the rule is irredeemably overbroad, since it can be narrowed. Were the ABA to remove the clause concerning statements that appear to commit the candidate, the rules sweep would be significantly narrowed. While the rule would still broadly apply where a candidates impartiality might be questioned, the body of disqualification and recusal law is sufficiently well established that the rules reach can be confined so as to not substantially burden protected speech. Removing this clause will also serve to help cure the vagueness problem, *1105 discussed below, that currently opens up the disqualification rule to doubt.168 b. Vagueness.--First Amendment overbreadth and vagueness doctrines are closely related. 169 As the void-for-vagueness doctrine is traditionally stated, a regulation will be deemed impermissibly vague when it is so unclear that people of
ordinary intelligence would need to guess at whether their conduct was or was not forbidden 170 and so ill-defined as to encourage arbitrary and discriminatory enforcement. 171 While the doctrine is conceptually related to the requirement of notice in the realm of procedural due process, 172 the Court has stated that the more important aspect of the vagueness doctrine is the requirement that a regulation be sufficiently determinate to provide minimal guidelines for those tasked with its enforcement so as to limit their discretion and prevent arbitrary or abusive enforcement. 173 The conclusion that a vague regulation runs afoul of the First Amendment has greater bite than a finding of due process vagueness because, as with First Amendment overbreadth, a finding that a regulation is impermissibly vague usually results in the regulations facial invalidation; 174 if a court cannot provide an acceptable *1106 narrowing construction, the regulation will be deemed unenforceable. 175 Also, as with overbreadth, a person whose conduct is not constitutionally protected is nonetheless usually still permitted to raise a vagueness challenge on behalf of parties not before the court. 176 As currently drafted, the ABA disqualification rule is exceedingly vague.177 The rules fatal defect is its use of overly pliable terms and concepts: might reasonably be questioned and appear to commit. The rule provides judicial candidates virtually no guidance as to what speech is acceptable and what speech is unacceptable: How is a candidate to know which speech will appear to commit her to an issue or controversy, or might cause her impartiality to be questioned, and which speech will not? The rule provides no guidance to a candidate so that, in delivering a campaign speech or responding to voter questions, she can predict how far she can go before her statements cross the line. In fact, the rule is so vague that it provides no guidance as to where that line is drawn in the first instance. The conclusion that the disqualification rule is unacceptably vague is, somewhat surprisingly, confirmed by the Working Group that drafted the rule. In explaining its revision of the 1990 version of the commitments clause, which contained language identical to the appears to commit language in the disqualification rule,178 the Working Group noted that it had removed that language because restrictions on statements that appear to commit were too vague to withstand strict scrutiny analysis. *1107 179 If this restriction was deemed too vague in the context of the campaign speech restrictions, it is difficult to see how it is not too vague in the context of judicial disqualification as well. As with the overbreadth problem, however, the disqualification rule can likely be satisfactorily narrowed to avoid vagueness by removing the appears to commit provision. This would eliminate much of the uncertainty for candidates as to the rules scope and would reduce the risk of the rules overenforcement or abusive enforcement. The ABA can also reduce the vagueness problem by adopting interpretive commentary, as it has done with most of the other provisions in Canon 3(E), 180 providing guidance to candidates and judges deciding recusal or disqualification motions so that they might better know what statements will cross the line and what statements will not. While it could still be argued that the rule would remain vague insofar as it would leave open questions as to what, precisely, commits a candidate with respect to an issue or controversy, this objection can be remedied by replacing the disqualification rule entirely with a provision similar to the Texas recusal standard. B. The Texas Recusal Standard Even with redrafting and removal of the appears to commit language, the disqualification rule will remain susceptible to First Amendment attack. In particular, the provision prohibiting statements that commit a candidate with respect to a particular issue or controversy can be attacked as having an unduly chilling effect on protected campaign speech and as being unacceptably vague.181 The ABA can significantly reduce or avoid these challenges by abandoning the disqualification rule in favor of a provision similar to the Texas recusal standard. Texas law regulating judicial conduct is not derived from the ABAs judicial conduct codes. For much of the states history, the Texas Constitution provided the sole and exclusive grounds for seeking the disqualification of a Texas judge.182 Judges in Texas were not subject to a comprehensive code of conduct until 1974, when the Texas Supreme Court adopted a judicial conduct code based on the ABAs 1972 Code of Judicial *1108 Conduct.183 The Code explicitly introduced the impartiality standard to Texas disqualification law, but as originally promulgated, the Codes disqualification provision stated only that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.184 Although the Codes adoption was clearly intended to be a step toward assuring Texas litigants of fundamental fairness,185 following its adoption some still believed that the Texas Constitution provided the sole grounds for disqualification, with the Code seen as providing only hortatory, non-binding guidelines. 186 The Texas Supreme Court clarified the law in 1988 when it removed the disqualification provisions from the Code and adopted them in substantially the same form as binding rules of civil procedure. 187 Today, although Texass law of judicial disqualification remains unsettled 188 and is still[ ] 2012 Thomson Reuters. 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evolving,189 it is generally recognized that a judge may be prevented from hearing a case pursuant to the state constitution, statutes, or rules promulgated by the Texas Supreme Court.190 *1109 It was against this complicated backdrop that the Texas Supreme Court adopted its post-White amendments to the Code of Judicial Conduct. 191 The most significant amendments were made to Canon 5, which contains Texass campaign speech restrictions. These revisions deleted a provision found to be virtually indistinguishable from the announce clause at issue in White,192 but imported much of that provisions content into a revised promises clause. 193 More importantly for the purposes of this Note, the Texas Supreme Court added interpretive commentary to Canon 5 that notes that [a] statement made during a campaign for a judicial office, whether or not prohibited by this Canon, may cause a judges impartiality to be reasonably questioned in the context of a particular case and may result in recusal. 194 The Texas Code does not contain provisions equivalent to Canon 3(E) of the ABAs Model Code of Judicial Conduct and, as a result, cannot be a direct basis for recusal of a judge,195 but provisions similar to those in Canon 3(E) are located in Rule 18b(2) of the Texas Rules of Civil Procedure.196 The introduction *1110 of the comment thus makes clear the connection between the Codes campaign speech restrictions and the rules governing recusal. The Texas recusal standard provides a viable alternative to the ABAs disqualification rule. Unlike the disqualification rule, the Texas recusal standard is not an operative rule of conduct; it is instead embodied in an interpretive comment with no formal legal effect.197 The comment serves as a guidepost for application of the states traditional recusal doctrine, but does not itself serve as an independent basis for a judges recusal.198 The recusal standard would therefore be immune to a First Amendment attack alleging that the standard directly burdened candidates speech, an attack to which the disqualification rule is vulnerable. 199 *1111 Where the ABAs disqualification rule requires a judges disqualification if she is found to have made statements that commit or appear to commit her with respect to an issue or controversy in a case such that her impartiality might be reasonably questioned, the Texas recusal standard serves simply to provide notice to a candidate that her campaign statements may cause her impartiality to be questioned and may lead to her recusal; there is no requirement that the judge be recused. 200 The differences are significant: The ABAs rule specifies a virtually limitless class of statements (a public statement that commits, or appears to commit the judge with respect to particular issues or controversies 201) that, if made during a campaign for judicial office, have the potential to compel a judges removal from a particular case or class of cases. 202 The Texas standard, on the other hand, provides blanket notice to all judicial candidates, litigants, and attorneys that statements made on the campaign trail may implicate the states existing recusal laws, but the standard does not single out a particular class of statements. 203 Moreover, the difference is more than just semantic. Viewed both in isolation or in conjunction with the ABAs revised campaign speech restrictions, 204 the ABAs rule will have the same effect as an outright ban on the statements. That is, with the disqualification rule in place, candidates will be faced *1112 with a decision either to refrain from making certain statements the Model Code would otherwise permit, or make those statements and then be disqualified from hearing future cases to which the statements pertain. 205 Most candidates will not find the decision to be difficult and will refrain from making the statements. Because it does not require a judges disqualification or recusal, a candidate is not faced with this Hobsons choice under the Texas recusal standard. The addition of the interpretive comment establishes an explicit connection between the Codes campaign speech restrictions and the rules governing recusal. It makes clear that, in the Texas Supreme Courts view, statements made on the campaign trail can reasonably cause a judges impartiality to be questioned and recusal successfully obtained on the basis of those statements. 206 Accordingly, in theory, a judge who comes to office by way of promises that constituencies may interpret as indicating how that judge may decide particular cases, may be relieved of the opportunity to hear those cases.207 Nothing in the standard, however, requires the judges recusal. The Texas recusal standard can serve as an alternative to the ABAs disqualification rule. By substituting the current rule with interpretive commentary similar to the Texas standard, the ABA can accomplish the same basic goal while protecting the Model Code from continued First Amendment attacks. Moreover, such a substitution would not come at a loss of effectiveness if judges deciding recusal motions took seriously the recusal standards connection between a judges campaign statements and the impact of those statements on the judges appearance of impartiality. Conclusion Republican Party of Minnesota v. White has altered the landscape of judicial elections. Although the announce clause had been struck down or narrowed by a number of courts and had been eliminated in favor of less-restrictive provisions by the ABA and most states, its continued application was at least possible while the Court had not spoken on the issue. In the wake of the Courts decision ending the use of the broadest campaign speech restriction, the continued viability of the remaining restrictions was called into question. As a result, the ABA has moved to bring its *1113 Model Code-- upon which most state
judicial conduct codes are based--in line with White. Unfortunately, in so doing, the ABA has replaced one set of suspect provisions with another similarly suspect provision. With some modest redrafting, however, the ABA disqualification rule can be improved to bring it in line with the First Amendments protections on political campaign speech while still serving the compelling interest of judicial impartiality. Alternatively, the ABA could substitute its disqualification rule with interpretive commentary similar to the Texas recusal standard, thereby making the Model Code less susceptible to future First Amendment challenges. By adding commentary mirroring the Texas recusal standard to Canon 3(E) that makes clear the connection between campaign statements and the possibility of disqualification or recusal, but which does not target and penalize specific speech, the ABA can achieve the necessary balance between protecting the interests of litigants and those of candidates for judicial office. Footnotes 1
Approval of Amendments to the Texas Code of Judicial Conduct, Misc. Docket No. 02-9167 (Tex. Aug. 22, 2002) [hereinafter Texas Amendments] (amending Canons 3, 5, and 6 of the Texas Code). Id. at 5.
Id. at 1 ([T]he immediacy of pending elections requires that these amendments be undertaken without the full and deliberate study the Court would ordinarily employ.).
The terms disqualification and recusal are often used coterminously to refer to the situation where a judge removes herself from presiding over a case. Traditionally, however, recusal refers to instances where a judge voluntarily removes herself due to a subjective belief that the existence of some conflict would make it inappropriate for her to hear a particular case. Disqualification, on the other hand, refers to situations where a judge is required to be removed from hearing a case at a partys request, usually for reasons set forth by statute or rule. Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges 1.1, at 4-5 (1996).
Model Code of Judicial Conduct Canon 3(E)(1)(f) (2003) [hereinafter 2003 Model Code of Judicial Conduct].
Standing Comm. on Judicial Independence et al., Am. Bar Assn, Report to the House of Delegates 11 (2003) [hereinafter Report to the House of Delegates], available at http:// www.abanet.org/judind/judicialethics/amendments.pdf (on file with the Columbia Law Review).
See, e.g., In re Enforcement of Rule 2.03, Canon 5.B(1)(c) (Mo. 2002) (Recusal... may... be required of any judge in cases that involve an issue about which the judge has announced his or her views....); Ind. Commn on Judicial Qualifications, Ind. Supreme Court Div. of State Court Admin., Preliminary Advisory Opinion #1-02, at 3 (2002) (warning that a candidates statements may invite future recusal requests, or even mandate recusal on future cases); Bd. of Commrs on Grievances and Discipline, Supreme Court of Ohio, Opinion 2002-8, at 5 (2002) (Unfettered expressions of views may later become disqualification issues when on the bench.).
536 U.S. 765 (2002).
Id. at 768, 788 (paraphrasing Minnesota Code of Judicial Conduct Canon 5(A)(3)(d)(i) (2000)).
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11
10
See infra notes 34-35 and accompanying text.
11
See, e.g., Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1067 (1996) (stating that restrictions on campaign speech help judges avoid the hurly-burly of sometimes unseemly political strife and help ensure that courts are perceived as even-handed institutions). Although this Note will not undertake an examination of the pros and cons of restrictions on judicial campaign speech, it should be noted that the prevalence of these restrictions suggests that, at a minimum, there is a widely held belief that there are problems with elective judicial selection that must be addressed. See infra notes 27-47.
12
This Note will use the term campaign speech restrictions to refer to the restrictions placed on judicial candidates campaign speech. While these restrictions come in many forms, they are almost all based on those found in the ABAs three model judicial conduct codes and contain three core restrictions: the announce clause or the commitments clause (which prevents a candidate from either announcing her views on particular issues or committing herself to a position on a given issue); the promises clause (which prevents a candidate from promising to reach a particular result in a given case or class of cases); and the misrepresentation clause (which prevents a candidate from misrepresenting her qualifications for judicial office). See infra note 37.
13
Already, a number of cases have been decided in the federal and state courts testing Whites applicability to the remaining speech restrictions. See, e.g., Weaver v. Bonner, 309 F.3d 1312, 1321 (11th Cir. 2002) (applying White to strike down Georgia restriction prohibiting false or misleading statements); Spargo v. N.Y. State Commn on Judicial Conduct, 244 F. Supp. 2d 72, 92 (N.D.N.Y. 2003) (relying on White to void campaign speech restrictions as not narrowly tailored), vacated, 351 F.3d 65 (2d Cir. 2003); Smith v. Phillips, No. CIV. A.A-02CV111JRN, 2002 WL 1870038, at *1 (W.D. Tex. Aug. 6, 2002) (finding Texas speech restriction indistinguishable from restriction in White and therefore unconstitutional); In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (distinguishing White and upholding Florida campaign speech restrictions under strict scrutiny); In re Raab, 793 N.E.2d 1287, 129093 (N.Y. 2003) (distinguishing White and upholding New York restrictions on political conduct); In re Watson, 794 N.E.2d 1, 5-8 (N.Y. 2003) (holding that New Yorks pledges clause satisfies strict scrutiny as applied in White). Additionally, at least two state supreme courts have heard challenges to other judicial conduct code provisions raising arguments under White. See Griffen v. Ark. Judicial Discipline & Disability Commn, No. 02-662, 2003 WL 22725673, Part I.f (Ark. Nov. 20, 2003) (striking down Arkansas campaign restriction as not narrowly tailored); In re Dunleavy, 2003 ME 124, PP 30-31, 838 A.2d 338, 350-51 (Me. 2003) (holding that Maine campaign regulation satisfied strict scrutiny), cert. denied, No. 03-1132, 2004 WL 237906 (U.S. Mar. 29, 2004).
14
See infra note 41.
15
Whether or not such a move is desirable or appropriate is not this Notes concern. The disqualification alternative is not, however, new. Disqualification was suggested as a desirable alternative to campaign speech restrictions by a dissenting justice in Deters v. Judicial Retirement & Removal Commission, who argued that the requirement of the appearance of impartiality can easily be satisfied by recusal, voluntary or involuntary, of the judge thought to be offending. 873 S.W.2d 200, 205 (Ky. 1994) (Wintersheimer, J., concurring in part and dissenting in part). In his White concurrence, Justice Kennedy also suggested that states could rely on disqualification as a sufficient alternative to campaign speech restrictions. Republican Party of Minn. v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring) (arguing that the state could adopt recusal standards more rigorous than due process requires rather than restrict candidates speech). Nevertheless, the disqualification alternative has been rejected by a number of commentators out of a concern that it would not provide an adequate substitute to outright restrictions on disfavored campaign speech. See, e.g., Shepard, supra note 11, at 1081-83 (arguing that recusal rules will [not] provide anything approaching reliable relief to litigants who find their legal fate in the hands of a judge who has promised the voters to rule against them); Neil K. Sethi, Comment, The Elusive Middle Ground: A Proposed Constitutional Speech Restriction for Judicial Selection, 145 U. Pa. L. Rev. 711, 733-35 (1997) (arguing that even with a recusal rule in place, candidates who make certain campaign statements have nevertheless made an implicit promise and are therefore subject to the pressures which accompany such a commitment). It has also been suggested that a disqualification alternative to speech restrictions would constitute electoral fraud because voters would be induced to vote for a candidate who could then not live up to her campaign statements as a result of her disqualification. Shepard, supra note 11, at 1082-83; Sethi, supra, at 734-35.
16
This Note will refer to the Texas interpretive commentary as the Texas recusal standard. Although the commentary does not contain any of the tell-tale signs of standards, it eschews the bright-line quality of the ABA rule and instead instructs that the fact finder may determine that recusal is required on a case-by-case determination. And although the ABA rule employs a reasonableness inquiry--a hallmark of standards--its use of the mandatory shall leaves little room for discretion once its elements are satisfied.
17
Whether disqualification or recusal on the basis of a judges campaign statements is attainable under current standards is an open question. See infra note 57.
18
Cf. Justice in Jeopardy: Report of the American Bar Association Commission on the 21st Century Judiciary 75 (2003), available at http:// www.manningproductions.com/ABA263/finalreport.pdf (on file with the Columbia Law Review) (asking, but not answering, whether, [t]o the extent that the Code may not prohibit candidates from making particular kinds of statements during judicial campaigns, [it may] still require those candidates to recuse themselves later, in cases to which their prior comments relate).
19
U.S. Const. art. II., 2 ([The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court, and all other Officers of the United States ....).
20
Polly J. Price, Selection of State Court Judges, in State Judiciaries and Impartiality: Judging the Judges 9, 12 (Roger Clegg & James D. Miller eds., 1996).
21
Joseph H. Smith, An Independent Judiciary: The Colonial Background, 124 U. Pa. L. Rev. 1104, 1105 (1976); Glenn R. Winters, Selection of Judges--An Historical Introduction, 44 Tex. L. Rev. 1081, 1081-82 (1966).
22
Objections to the Crowns control over the colonial judiciary were among the enumerated grievances leveled against King George III in the Declaration of Independence. The Declaration of Independence para. 10 (U.S. 1776) ([He] has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.); id. para. 11 ([He] has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.).
23
See, e.g., The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (arguing that life tenure for federal judges would ensure judicial independence from external controls and secure a steady, upright, and impartial administration of the laws); see also id. No. 51, at 321 (James Madison) (arguing that life tenure would destroy all sense of dependence on the authority conferring judicial appointments). One aspect of judicial independence viewed as crucial to Alexander Hamilton was independence from the electorate. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 708 (1995). The Constitution, Hamilton argued, could not be protected by judges who served only for limited periods, and popular election of judges would create too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws. The Federalist No. 78, supra, at 471 (Alexander Hamilton). Of course, not every founder shared Hamiltons views. Indeed, although Thomas Jefferson originally supported judicial life tenure, his views on the subject changed dramatically in favor of electoral control after the Supreme Courts decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Lee Epstein et al., Selecting Selection Systems, in Judicial Independence at the Crossroads: An Interdisciplinary Approach 191, 202 (Stephen B. Burbank & Barry Friedman eds., 2002).
13
24
Winters, supra note 21, at 1081-82. The states employed a mix of legislative appointment and various forms of gubernatorial appointment. Id. at 1082.
25
See Evan Haynes, The Selection and Tenure of Judges 99 (1944) (providing details of various states judicial selection systems in the early nineteenth century).
26
Price, supra note 20, at 13; Seth Andersen, Am. Judicature Socy, Judicial Selection in the United States: A Special Report 1 (1999), available at http://www.ajs.org/selection/berkson.pdf (on file with the Columbia Law Review). The shift toward popular election in the mid-nineteenth century is usually explained as an outgrowth of the Jacksonian democratic movement. Price, supra note 20, at 13. The Jacksonians sought greater popular control of all levels of government through the electoral process, and this desire for electoral control spread to encompass members of the judicial branch as well. Id. at 13; Croley, supra note 23, at 716. While some have argued that the impetus for the movement toward elective judiciaries arose primarily from the belief that an elective system would remedy ills in the various appointive systems, which resulted in patronage, corruption, and elitism, see, e.g., Elizabeth A. Larkin, Judicial Selection Methods: Judicial Independence and Popular Democracy, 79 Denv. U. L. Rev. 65, 77 (2001), no single factor motivated the movement, Price, supra note 20, at 13. As Professor Croley noted, Marbury, Jacksonianism, participation in politics by settlers of the western frontier, judicial rulings favorable to creditors, resistance to the English common law, and judicial corruption are all overlapping factors frequently mentioned by scholars (Jacksonianism most of all) as contributing to the adoption of elective judiciaries. Croley, supra note 23, at 717.
27
Winters, supra note 21, at 1083. For instance, in 1821, prior to the surge in the movement, Justice Story argued against the emerging trend. Haynes, supra note 25, at 98. During the final half of the nineteenth century, a number of states began moving back to appointive systems, and those states that stuck with the elective system became increasingly concerned about the adverse effects of political selection on the quality of judicial personnel. Winters, supra note 21, at 1083.
28
In a 1906 address to the ABAs annual convention, then-Professor Roscoe Pound declared that judicial elections had, in part, led to public distrust and a real and serious dissatisfaction with the courts. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address Delivered at the Annual Convention of the American Bar Association (1906), reprinted in 46 J. Am. Judicature Socy 55, 55, 66 (1962).
29
Price, supra note 20, at 14; Maura Anne Schoshinski, Note, Towards an Independent, Fair, and Competent Judiciary: An Argument for Improving Judicial Elections, 7 Geo. J. Legal Ethics 839, 847-48 (1994). The ABA adopted the plan in 1937 as its reform model of choice, and Missouri adopted it three years later.
30
Larkin, supra note 26, at 73.
31
See generally Am. Judicature Socy, Judicial Selection in the States: Appellate & General Jurisdiction Courts (Oct. 2002), available at http://www.ajs.org/js/JudicialSelectionCharts.pdf (on file with the Columbia Law Review). See also Patrick M. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 5, 131 n.7 (1990); Schoshinski, supra note 29, at 848.
32
Croley, supra note 23, at 724-25.
33
Today, thirty-nine states utilize some sort of elective system for some or all of their judges, with the result that 87% of state judges gain or retain their offices by election. See Robert C. Berness, Note, Norms of Judicial Behavior: Understanding Restrictions on Judicial Candidate Speech in the Age of Attack Politics, 53 Rutgers L. Rev. 1027, 1028, 1034 (2001). The remaining eleven states and the District of Columbia use appointive systems. Id. at 1034 n.47.
THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072 Although elective selection is the dominant method of judicial selection in the United States and appears to be here to stay for the foreseeable future, criticism of the practice has by no means subsided. The scholarship on the pros and cons of elective selection is voluminous and cannot be fully discussed here, but for illustrative discussions of the issue, see, e.g., Shirley S. Abrahamson, The Ballot and the Bench, 76 N.Y.U. L. Rev. 973, 978-1003 (2001) (discussing both the advantages and disadvantages of judicial elections and increasing pressures placed on the practice); Croley, supra note 23, at 726-29 (arguing that judicial elections compromise the protection of minority rights against the will of the majority and give rise to judicial bias in the daily administration of justice); Randall T. Shepard, Judicial Independence and the Problem of Elections: We Have Met the Enemy and He Is Us., 20 Quinnipiac L. Rev. 753, 756-65 (2001) (arguing that judicial elections place both external and internal pressures on judges). Critiques of elective selection are not confined to the law journals, with advocacy groups such as the Brennan Center for Justice speaking out against the negative consequences of elective selection. See generally Brennan Ctr. for Justice, Fair Courts Project, at http://www.brennancenter.org/programs/programs_dem_fc.html (last visited Feb. 19, 2004) (on file with the Columbia Law Review).
34
Canons of Judicial Ethics Canon 30 (1924) [hereinafter 1924 Canons of Judicial Ethics], reprinted in Lisa L. Milord, The Development of the ABA Judicial Code appx. D, at 131, 140-41 (1992).
35
Id. at 140-41. In addition, a candidate was to do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination. Id.
36
E. Wayne Thode, Reporters Notes to Code of Judicial Conduct 1, 5 (1973). In the years since their adoption, the Canons had increasingly come to be seen as archaic and inadequate, and the ABA therefore concluded that revisions were necessary. See Jeffrey M. Shaman et al., Judicial Conduct and Ethics 1.02, at 3 (3d ed. 2000) (The Canons have been criticized for their emphasis on moral posturing that proved to be more hortatory than helpful in providing firm guidance for the solution of difficult questions. (internal quotation marks omitted)).
37
Code of Judicial Conduct Canon 7(B)(1)(c) (1972) [hereinafter 1972 Code of Judicial Conduct], reprinted in Thode, supra note 36, at 29. Subsection (B)(1)(c) of Canon 7 in its entirety reads: A candidate... should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact. Id.
38
Thode, supra note 36, at 97-98 (reporters commentary to Canon 7(B)(1)(c)). Canon 7(B)(1)(c)s prohibitions on a candidates announcing his or her views on disputed legal and political issues is in keeping with the Codes overarching focus on the preservation of judicial integrity, independence, propriety, and impartiality, see, e.g., 1972 Code of Judicial Conduct, supra note 37, Canons 1, 2(A), 3(A)(1) (setting forth requirements regarding judicial integrity, independence, and impartiality), and thus represents far more than a simple hostility toward the practice of elective selection of judges. To a far greater extent than the original Canons, the Code of Judicial Conduct was an attempt to create a comprehensive set of specific standards to govern the conduct of the holders of judicial office. See id. Canon 2 cmt. ([A judge] must... accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.).
39
See generally Model Code of Judicial Conduct (1990) [hereinafter 1990 Model Code of Judicial Conduct].
40
The new provision prohibited a candidate from making statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court. Id. Canon 5(A)(3)(d)(ii). The promises clause remained substantively untouched in the Model Code. See id. Canon 5(A)(3)(d)(i). The drafters did, however, make a significant addition to the misrepresentation clause: A knowledge requirement was added so as to remove unintentional misrepresentations from the
15
provisions reach. Id. Canon 5(A)(3)(d)(iii).
41
Milord, supra note 34, at 50. Overall, the Model Code has been less enthusiastically received than its predecessor. See, e.g., Shepard, supra note 11, at 1066 n.37 (noting criticism that the Model Codes mandatory language has hindered its aspirational goals). As a result, adoption of the Model Code has been far from universal: Whereas the 1972 Code was adopted by forty-seven states, as of 2001 the Model Code had only been adopted by twenty-three states, with a few others retaining a version of the 1972 Code with revisions derived from the Model Code. Shaman et al., supra note 36, 1.02, at 3-5 & nn.19-22 (collecting state code and statutory provisions).
42
According to the Working Group on the First Amendment and Judicial Campaigns, which revised the restrictions: To conclude... that the White decision leaves the current Code provisions intact may fail to reckon with certain aspects of the Courts analysis. Although the [C]ourt explicitly declined to rule on the constitutionality of the pledges-or-promises and commit clauses, both of these provisions and the misrepresent clause are, like the announce clause, content-based restrictions on a candidates speech and would therefore be subject to strict scrutiny if challenged in subsequent cases. Report to the House of Delegates, supra note 6, at 9. Indeed, under one commentators interpretation of White, the 1990 formulation of the speech restrictions would not survive strict scrutiny because it is not narrowly tailored to prevent due process violations, which she argues is the only compelling interest sufficient to support campaign speech restrictions. See Michelle T. Friedland, Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech, 104 Colum. L. Rev. 563, 606-12 (2004). This interpretation, however, has not been shared by a number of the courts that have heard challenges to state judicial conduct codes in the two years since White was decided. See infra notes 107-112 and accompanying text; infra note 114.
43
See 2003 Model Code of Judicial Conduct, supra note 5, Canon 5(A)(3)(d)(i)-(ii).
44
The new provision states that a candidate for a judicial office... shall not... with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. Id. Canon 5(A)(3)(d)(i).
45
Id. Although the revised rule, like the 1990 version, broadly applies to cases, controversies, or issues that are likely to come before the court, a new clause provides that the rule applies to pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the [judicial] office. Id. Thus, where the 1990 version applied to all statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court, 1990 Model Code of Judicial Conduct, supra note 39, Canon 5(A)(3)(d)(ii), the impartiality clause limits the revised rules reach to only those pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the [judicial] office, 2003 Model Code of Judicial Conduct, supra note 5, Canon 5(A)(3)(d)(i).
46
Report to the House of Delegates, supra note 6, at 12.
47
In September of 2003, the ABAs president announced that a body composed of both judges and lawyers would review the Model Code and propose possible revisions by the winter of 2005. News Release, Am. Bar Assn, Joint ABA Commission to Evaluate Model Code of Judicial Conduct (Sept. 25, 2003), available at http://www.pressi.com/us/release/73978.html (on file with the Columbia Law Review).
48
Flamm, supra note 4, 1.4, at 10.
49
Cf. id. 1.4, at 11.
50
Id. 1.4, at 12.
51
Id. 1.6, at 14. Additionally, the tension between concerns that it neither be too difficult nor too easy to disqualify a judge has resulted in the adoption of judicial disqualification statutes, court rules, and constitutional provisions ranging from those that are virtually impossible to satisfy to those that are almost impossible not to satisfy. Id.
52
See, e.g., In re Dunleavy, 2003 ME 124, PP8-10, 838 A.2d 338, 344 (Me. 2003) (stating that the state supreme court has inherent and exclusive authority to regulate judicial conduct... as an exercise of the powers conferred upon the Judicial Branch), cert. denied, No. 03-1132, 2004 WL 237906 (U.S. Mar. 29, 2004).
53
Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judges Impartiality Might Reasonably Be Questioned, 14 Geo. J. Legal Ethics 55, 55 (2000) (stating that the Codes of Judicial Conduct have formed the foundation for judicial discipline and disqualification in American courts); see also Flamm, supra note 4, 1.6, at 13 (discussing nearly universal adoption of the ABA codes); Shaman et al., supra note 36, 4.02, at 109 (stating that the standard set out in the Codes exemplifies the modern view of judicial disqualification). Forty-nine states have adopted the Code in some form and a majority of states have enacted statutory disqualification laws. Abramson, supra, at 55. Federal judges are also subject to statutory disqualification standards modeled closely after the ABAs formulation. See 28 U.S.C. 455 (2000).
54
1990 Model Code of Judicial Conduct, supra note 39, Canon 3(E)(1); cf. 28 U.S.C. 455(a) (Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.). The Model Codes commentary is quite clear that this is a mandatory rule, despite the discretion usually accorded judges in determining when their impartiality might reasonably be questioned. See 1990 Model Code of Judicial Conduct, supra note 39, Canon 3(E)(1) cmt. (Under this rule, a judge is disqualified whenever the judges impartiality might reasonably be questioned.... (emphasis added)).
55
Flamm, supra note 4, 5.5, at 154-55. Apparently recognizing the elusive nature of this disqualification provision, id. 5.5, at 154, the 2003 amendments to the Model Code for the first time adopt a definition of impartiality. The definition reads: Impartiality or impartial denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. Report to the House of Delegates, supra note 6, at 2. The Working Group explicitly drafted this definition to fall in line with the definition of impartiality that emerges from Republican Party of Minnesota v. White, 536 U.S. 765, 775-80 (2002). See Report to the House of Delegates, supra note 6, at 10 (The definition of impartiality tracks the analysis of impartiality in the majority opinion of White....).
56
See 1990 Model Code of Judicial Conduct, supra note 39, Canon 3(E)(1)(a)-(d) (requiring, inter alia, disqualification where a judge has personal knowledge of the facts in a case).
57
2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f). While this Note does not propose to evaluate the merits of disqualification or recusal as an alternative to campaign speech restrictions, it should be noted that the disqualification alternative previously has been criticized on the ground that under current standards, disqualification and recusal motions based on a judges campaign statements will usually fail. See Shepard, supra note 11, at 1081 (arguing that unless the rules regarding recusal are far more liberal than the ones judges currently apply, the disqualification alternative would fail rather spectacularly); see also supra note 15. According to Chief Justice Shepard, neither the federal recusal rule nor the similar ABA rule will provide anything
17
approaching reliable relief to litigants who find their legal fate in the hands of a judge who has promised the voters to rule against them. Shepard, supra note 11, at 1081. Chief Justice Shepards argument has considerable force. See, e.g., Nevius v. Warden, Nev. State Prison, 944 P.2d 858, 858-59 (Nev. 1997) (per curiam) (rejecting recusal motion brought against Nevada Supreme Court justice in death penalty case despite the justices campaign association with the state attorney general and statements touting his record of upholding seventy-six death penalty judgments); Arbelaez v. State, 775 So. 2d 909, 915-16 (Fla. 2000) (rejecting disqualification motion based on judges pro-prosecution judicial campaign with nary a discussion of the judges campaign behavior). It remains to be seen whether the ABAs new rule will increase the success rate of disqualification motions similar to those brought in Nevius or Arbelaez. Presumably it will, since the rule is drafted in mandatory terms and thus requires disqualification when its elements are satisfied. However, because it is usual for a challenged judge to decide disqualification or recusal motions herself (if the judge does not disqualify herself sua sponte), a disqualification rule similar to the ABAs may not prove as effective as hoped if the judge subjectively--rather than objectively--assesses whether her impartiality might reasonably be questioned. Cf. Abramson, supra note 53, at 58 ([U]se of the term reasonably suggests that the viewpoint for assessing the presence of an appearance of impropriety is not from the perspective of the [challenged] judge.... [S]tates use a reasonable person standard to decide the existence of an appearance of impropriety.). This may occur where a judge is challenged on the basis of statements made during a campaign occurring several years prior to the motion. If the judge subjectively decides her impartiality is not in question because of the period of time elapsed since she made the statements, the ABAs disqualification rule would not protect the litigant who in good faith believes he will be at a disadvantage appearing before the judge.
58
2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f).
59
See Report to the House of Delegates, supra note 6, at 11.
60
61
In this way, the disqualification rule acts to sanction candidates for their campaign speech: Not only will judges who are disqualified on the basis of their campaign statements be prevented from hearing cases involving issues they view as important, but such judges would run the risk of angering voters or interest groups whose support they had received in the previous election. Accord supra note 15; infra note 137.
62
U.S. Const. amend. I (Congress shall make no law... abridging the freedom of speech....). Although originally directed only toward the federal government, the First Amendment has long been held applicable to the states through its incorporation into the Due Process Clause of the Fourteenth Amendment. See, e.g., Fiske v. Kansas, 274 U.S. 380, 386-87 (1927) (holding that application of state criminal syndicalism act to an individual for distribution of socialist political literature violated Due Process Clause); Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943) (stating that the First Amendment is applicable to the states via the Fourteenth Amendment).
63
Geoffrey R. Stone et al., Constitutional Law 1004 (4th ed. 2001); see also Kathleen M. Sullivan & Gerald Gunther, First Amendment Law 12 (2d ed. 2003) (Categorization of types of speech finds certain varieties of speech unprotected on a wholesale basis because the claim simply does not belong in the First Amendment ballpark....); Laurence H. Tribe, American Constitutional Law 12-18, at 928-29 (2d ed. 1988) ([T]he Supreme Court ha[s] gradually derived what became known as the two-level theory of the [F]irst [A]mendment, recognizing speech at one level as fully entitled to [F]irst [A]mendment protection and relegating to a lower level speech so worthless as to be beyond the constitutional ken.).
64
Erwin Chemerinsky, Constitutional Law: Principles and Policies 11.3.6.3, at 1032 (2d ed. 2002).
65
Id. at 1032-33.
66
Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Buckley); see also Sullivan & Gunther, supra note 63, at 6 (noting that that the First Amendments speech protections have been seen as essential to representative government).
67
Brown v. Hartlage, 456 U.S. 45, 53 (1982).
68
Buckley, 424 U.S. at 14-15.
69
Eu, 489 U.S. at 223 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
70
See, e.g., Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) ([W]e reject the view that freedom of speech and association... are absolutes....); Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (stating that while First Amendment rights are closely protected, they are not absolute at all times and under all circumstances); Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring) ([A]lthough the rights of speech and assembly are fundamental, they are not in their nature absolute.).
71
See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); see also Tribe, supra note 63, 13-26, at 1129-30 (observing that campaign regulations have been adopted and upheld to prevent chaotic campaigns and protect voters power to make a reasoned choice among the candidates).
72
Timmons, 520 U.S. at 358 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)); see infra notes 124-129 and accompanying text.
73
Republican Party of Minn. v. White, 536 U.S. 765, 774-75 (2002) (stating that a regulation must be narrowly tailored to serve a compelling state interest in order to survive strict scrutiny); see also Brown v. Hartlage, 456 U.S. 45, 53-54 (1982) (When a State seeks to restrict directly the offer of ideas by a candidate to the voters, the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression.).
74
See Eu, 489 U.S. at 231.
75
Brown, 456 U.S. at 54-55.
76
Burdick, 504 U.S. at 433.
77
Brown, 456 U.S. at 53.
19
78
Buckley v. Valeo, 424 U.S. 1, 52 (1976).
79
Brown, 456 U.S. at 60.
80
See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) ([W]ithout free speech... discussion would be futile;... with [it], discussion affords ordinarily adequate protection against the dissemination of noxious doctrine....).
81
These challenges found their antecedents in the First Amendment attacks of the 1970s on state regulations prohibiting attorney advertising and the decline of professionalism as a justification for aggressive regulation of the legal profession. In Bates v. State Bar, 433 U.S. 350, 383-84 (1977), the Court recognized attorney advertising as commercial speech entitled to First Amendment protection and struck down state bar association rules which prohibited certain types of advertising by attorneys, an approach to commercial speech it subsequently refined, see, e.g., Shapero v. Ky. Bar Assn, 486 U.S. 466, 472-78 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 646-47 (1985); In re R.M.J., 455 U.S. 191, 204-07 (1982), and extended, see, e.g., Peel v. Attorney Registration & Disciplinary Commn, 496 U.S. 91, 110-11 (1990) (Stevens, J., plurality opinion) (striking down state bar provision prohibiting attorneys from holding themselves out on their letterhead as specialists in certain practice areas). The Court in these cases raised to the constitutional level issues that had previously been considered as only raising questions of legal ethics and professional responsibility. By constitutionalizing rules regulating the professional conduct of attorneys, the Court arguably opened the door to similar attacks on rules regulating judicial conduct.
82
See ACLU of Fla., Inc., v. Fla. Bar, 744 F. Supp. 1094, 1096-98 (N.D. Fla. 1990) (concluding that Florida announce clause effectively proscribe[d] announcements on almost every issue that might be of interest to the public and the candidates in a judicial race).
83
See Berger v. Supreme Court, 598 F. Supp. 69, 75 (S.D. Ohio 1984) (concluding that Ohios campaign speech restrictions were necessary to achieve the states compelling interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party, or person (quoting Morial v. Judiciary Commn, 565 F.2d 295, 302 (5th Cir. 1977))); see also In re Kaiser, 759 P.2d 392, 400 (Wash. 1988) (upholding pledges and promises clause).
84
See generally, e.g., Republican Party of Minn. v. Kelly, 247 F.3d 854, 857 (8th Cir. 2001) (upholding narrow construction of announce clause), affg 63 F. Supp. 2d 967 (D. Minn. 1999), revd sub nom. Republican Party of Minn. v. White, 536 U.S. 765 (2002); Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 229-31 (7th Cir. 1993) (Posner, J.) (refusing to adopt narrowing construction and striking down announce and promises clauses); Stretton v. Disciplinary Bd., 944 F.2d 137, 142-44 (3d Cir. 1991) (upholding narrowed announce clause); Weaver v. Bonner, 114 F. Supp. 2d 1337, 1342-44 (N.D. Ga. 2000) (finding canon prohibiting false or misleading statements overbroad and refusing to provide narrowing construction), revd in part, 309 F.3d 1312 (11th Cir. 2002) (affirming finding that restrictions on candidates campaign statements was unconstitutional, but reversing finding that restrictions on fundraising and allowance of cease and desist order were constitutional); Beshear v. Butt, 863 F. Supp. 913, 91718 (E.D. Ark. 1994) (striking down announce clause as overbroad and vague and refusing to construe rule narrowly); Ackerson v. Ky. Judicial Ret. & Removal Commn, 776 F. Supp. 309, 313-15 (W.D. Ky. 1991) (finding promises clause unconstitutionally overbroad but also finding commitment clause narrowly tailored); In re Bybee, 716 N.E.2d 957, 960 (Ind. 1999) (per curiam) (upholding knowing misrepresentation clause as narrowly tailored); Summe v. Judicial Ret. & Removal Commn, 947 S.W.2d 42, 47-48 (Ky. 1997) (upholding previously narrowed speech restrictions); Deters v. Judicial Ret. & Removal Commn, 873 S.W.2d 200, 203-05 (Ky. 1994) (upholding promises and commitments clauses as sufficiently narrow); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 954-56 (Ky. 1991) (finding promises and announce clauses overly broad); In re Chmura, 608 N.W.2d 31, 43-45 (Mich. 2000) (finding canon prohibiting false or misleading statements overbroad and rewriting rule narrowly); In re Sanders, 955 P.2d 369, 37376 (Wash. 1998) (en banc) (reading term political activity narrowly and finding canon prohibiting judicial political activity unconstitutional as applied to statements made by sitting state supreme court justice).
85
Compare Stretton, 944 F.2d at 144 (applying narrowing construction and holding Pennsylvania announce clause narrowly tailored), with Buckley, 997 F.2d at 229-31 (declining to apply narrowing construction and holding almost identically worded Illinois announce clause to be not narrowly tailored).
86
See supra note 84 (collecting cases).
87
The Indiana Supreme Court, for example, has made very clear its strong belief in both the necessity and constitutionality of the speech restrictions, declaring that courts that have struck down the restrictions failed to recognize fully the seriousness of the countervailing constitutional threat posed by permitting candidates wide latitude in waging campaigns for judgeships. In re Bybee, 716 N.E.2d 957, 960 (Ind. 1999) (per curiam).
88
See supra note 84 (collecting cases).
89
Kelly, 247 F.3d at 857, affg 63 F. Supp. 2d 967 (D. Minn. 1999). The clause stated that a candidate for judicial office shall not... announce his or her views on disputed legal or political issues. Id. at 876 n.19.
90
Id. at 864, 867-68 (There is simply no question but that a judges ability to apply the law neutrally is a compelling governmental interest of the highest order.).
91
Id. at 881-82. The district court had accepted the states argument that construing the announce clause to apply only to issues likely to come before the court would save the clause from facial invalidity because it would still allow a candidate to discuss some issues of interest to the voters. Kelly, 63 F. Supp. 2d at 985-86.
92
Kelly, 247 F.3d at 882.
93
One judge on the three-judge panel dissented from the courts holding in its entirety. See id. at 885-903 (Beam, J., dissenting). Judge Beam argued that no matter how it was written, the announce clause effectively bans campaigning itself, and concluded that the protection of the states interest in judicial independence and impartiality could be achieved through other measures, notably through amendment of the state constitution to modify its method of judicial selection. Id. at 894, 902.
94
Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).
95
White involved a challenge to only the announce clause, and the Court explicitly limited its holding to that provision. See id. at 770, 773 n.5.
21
96
Id. at 770. Despite the various interpretations and constructions given to the clause by the Minnesota Supreme Court, the Eighth Circuit, and Minnesotas judicial conduct board, Justice Scalia believed that it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running. Id. at 773. Indeed, Justice Scalia was openly critical of the various glosses given the text by the courts. See id. at 771 (There are, however, some limitations... placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text.). Additionally, like Judge Posner in Buckley, Justice Scalia did not think limiting the clause to issues likely to come before the court was much of a limitation at all since very few issues are unlikely to come before a court. See id. at 772-73 ([T]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction. (quoting Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 229 (7th Cir. 1993) (Posner, J.))).
97
Id. at 775.
98
Id. at 775-77.
99
Id.
100
Id. at 777.
101
See id. at 777-78 (Proof that a Justices mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias. (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972) (Rehnquist, J., mem.))).
102
Id. at 780.
103
Id. at 779. Justice Scalia noted that prior to ascending to the bench, a judge will have taken a position on a wide array of issues during her legal career on which she will have to rule; while on the bench, a judge will express opinions through the adjudication of disputes and will reveal opinions in speeches, articles, books, and an array of other extrajudicial activities that are encouraged by the Model Code. Id.
104
Id. at 787.
105
Id. at 787-88.
106
Id. at 775-84. Concurring, Justice Kennedy suggested that the state could adopt recusal standards and censure judges who violate these standards in place of the speech restrictions. Id. at 794 (Kennedy, J., concurring). In dissent, Justice Ginsburg argued that the majority had incorrectly viewed the announce clause in isolation, rather than as one piece of an integrated system of judicial campaign regulation. Id. at 812-13 (Ginsburg, J., dissenting). The promises clause, she stated, was undeniably constitutional because it protected litigants due process rights and promoted public confidence in the judiciary. Id. at 812-18 (Ginsburg, J., dissenting). Without the announce clause, however, the promises clause could be easily circumvented through a candidates calculated use of language. Id. at 819-21 (Ginsburg, J., dissenting). The announce clause, Justice Ginsburg believed, was therefore vital to achieving the due process protections afforded by the promises clause, since [s]emantic sanitizing of the candidates commitment would not... diminish its pernicious effects on actual and perceived judicial impartiality. Id. at 819 (Ginsburg, J., dissenting). For a discussion of White from the due process perspective, see generally Friedland, supra note 42.
107
The Court specifically reserved judgment on the constitutionality of the other provisions and declined to speculate whether the announce clauses restrictive effect was no broader than that of the commitments clause (as Minnesota had argued). See White, 536 U.S. at 770, 773 n.5.
108
In what was apparently the first case to apply White, a judge in the Western District of Texas issued a brief order declaring unconstitutional certain provisions of Texass Code of Judicial Conduct that were similar to Minnesotas announce clause. See Smith v. Phillips, No. CIV. A.A-02CV111JRN, 2002 WL 1870038, at *1 (W.D. Tex. Aug. 6, 2002).
109
See Weaver v. Bonner, 309 F.3d 1312, 1319-21 (11th Cir. 2002) (We agree that the distinction between judicial elections and other types of elections has been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restrictions on speech during judicial campaigns than during other types of campaigns.).
110
See Spargo v. N.Y. State Commn on Judicial Conduct, 244 F. Supp. 2d 72, 81-82, 88-90 (N.D.N.Y. 2003) (voiding provisions prohibiting partisan political activity, such as attending political meetings or making political speeches, as impermissible prior restraints upon the rights guaranteed by the First Amendment), vacated, 351 F.3d 65, 85-86 & n.22 (2d Cir. 2003) (vacating on abstention grounds and expressing no view on the lower courts First Amendment analysis).
111
See In re Kinsey, 842 So. 2d 77, 86-89 (Fla. 2003) (holding White inapplicable to Floridas code of judicial conduct because the state had previously adopted a narrowed promises clause and commitments clause).
112
See In re Raab, 793 N.E.2d 1287, 1290, 1293 (N.Y. 2003) (distinguishing case from White as political activity at issue related to improper contribution to political party, not announcement of political views); In re Watson, 794 N.E.2d 1, 6-7 (N.Y. 2003) (distinguishing White and holding that it did not compel result in challenge to promises clause).
113
See, e.g., Ind. Commn on Judicial Qualifications, supra note 7, at 1 (stating that the Commission will continue to enforce the commitments, promises, and misrepresentation clauses); see also Report to the House of Delegates, supra note 6, at 9 (noting five states that concluded that speech restrictions other than the announce clause are not affected by the White decision and will continue to be enforced). The North Carolina Supreme Court, on the other hand, touched off a bit of controversy with its revisions to North Carolinas code of judicial conduct--revisions which made North Carolinas code the most permissive in the country and prompted a resolution from a group of lower court judges calling on the supreme court to reinstate the former ethics rules. Supreme Court Overhaul: Judges Want Tighter Campaign Rules Back, Sun News (Myrtle Beach), Oct. 15, 2003, at C1; see also Order Adopting Amendments to the North Carolina Code of Judicial Conduct (N.C. Apr. 2, 2003) (amending state judicial conduct code, in particular Canon 7, to allow judges, inter alia, to directly solicit campaign contributions, endorse nonjudicial candidates, speak at political party functions, and state his or her party affiliation).
114
The White majority only found one of three possible definitions of impartiality not to be compelling. Republican Party of Minn. v. White, 536 U.S. 765, 775-80 (2002) (rejecting as compelling impartiality as lack of bias for or against a particular legal view, but accepting as compelling impartiality as lack of bias for or against either party in a case and as openmindedness); see also Republican Party of Minn. v. White, No. 99-4021, 99-4025, 99-4029, 2004 WL 503674, at *2-*3, *6 (8th Cir. Mar. 16, 2004) (recognizing that Justice Scalias opinion only squarely rejected one possible definition of impartiality), on remand from 536 U.S. 765 (2002). This is precisely the definition of impartiality recently adopted by the ABA in its amendments to the Model Code. See Report to the House of Delegates, supra note 6, at 2 (Impartiality or impartial denotes absence of bias or prejudice in favor of, or
23
against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.). Additionally, the majority of courts that have addressed this issue, both pre- and post-White, have generally accepted the proposition that a states interest in preserving the integrity, independence, and impartiality of its judiciary is compelling. See supra notes 83-93, 107-112 and accompanying text. Michelle Friedland argues that the only interest the White Court recognized as sufficiently compelling to justify restricting judicial candidates speech is the protection of litigants procedural due process rights, stating that assertions of a general need to protect the appearance of judicial impartiality ... will be insufficient to sustain restrictions on judicial campaigning. Friedland, supra note 42, at 566-68. This is true insofar as the Court rejected the idea that as an undefined and nebulous concept, impartiality can be a compelling interest. Of the three possible definitions of impartiality it examined, however, the Court rejected only one as not compelling, concluding only that the announce clause was not narrowly tailored to serve impartiality under the other two definitions, see White, 536 U.S. at 775-80, a point Friedland appears to concede, see Friedland, supra note 42, at 601 (noting that the Court did not entirely reject the argument that campaign promises might undermine openmindedness). It is therefore fair to conclude that the Court would in fact accept impartiality as sufficiently compelling to satisfy the first prong of strict-scrutiny analysis under either definition, a conclusion that finds support in post-White decisions assessing the constitutionality of various provisions of state judicial conduct codes other than the announce clause. See, e.g., Griffen v. Ark. Judicial Discipline & Disability Commn, No. 03662, 2003 WL 22725673, at Part I.d (Ark. Nov. 20, 2003) (holding that judicial independence is a fundamental principle to which the people of [Arkansas] and the members of this court have subscribed and declaring [w]e have no hesitancy in adding that judicial independence is a compelling interest of the state); Watson, 794 N.E.2d at 7 (stating that the challenged provision furthers the States interest in preventing actual or apparent party bias and promoting open-mindedness because it prohibits a judicial candidate from making promises that compromise the candidates ability to behave impartially, or to be perceived as unbiased and open-minded by the public, once on the bench); see also White, 2004 WL 503674, at *6 (stating that an analysis based on the compelling interest in judicial open-mindedness is not contrary to White). In any event, even if Friedland proves correct in her argument that the due process interest recognized in White is the only sufficiently compelling interest to justify campaign speech restrictions, her narrow reading of that interest ignores the fact that states may choose to extend to their citizens rights to appear before a judge whose impartiality is not in doubt that go beyond those granted by due process. Cf. White, 536 U.S. at 794 (Kennedy, J., concurring) (stating that a state may adopt recusal standards more rigorous than due process requires, and censure judges who violate [those] standards). See generally Robert F. Williams, State Constitutional Law: Cases & Materials 222-32 (3d ed. 1999) (discussing states ability to extend to their citizens rights that go beyond those provided by the Federal Constitution through sub-constitutional state law).
115
This Notes primary focus is on the narrow-tailoring aspect of the ABAs disqualification rule, not its compelling-interest aspect. The following discussion will therefore proceed under the assumption that courts will accept the ABAs definition of impartiality as satisfying the compelling-interest prong of strict-scrutiny analysis. Even should that prove not to be the case, this Notes analysis of the narrow-tailoring prong of the strict-scrutiny inquiry with respect to the ABAs disqualification rule will not be substantially affected. The inquiry for the amended speech restrictions would, of course, be affected, and Friedlands piece provides an excellent discussion of one way that inquiry might go.
116
Although the ABA has now revised the speech restrictions, at this point no state appears to have brought its own judicial conduct code in line with the revisions. For those states that choose not to do so and retain the pre-White versions, the clause prohibiting promises and pledges is probably the safest, given that the Supreme Court has held that states may prohibit certain types of promises and pledges made by all candidates for elected office. See Brown v. Hartlage, 456 U.S. 45, 55 (1982) (It is... plain that some kinds of promises made by a candidate to voters... may be declared illegal without constitutional difficulty.); see also White, 536 U.S. at 813 (Ginsburg, J., dissenting) (All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results.); Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (Posner, J.) (noting that it is within the states regulatory power to forbid promises to rule in particular ways in particular cases or types of cases). But see Ackerson v. Ky. Judicial Ret. & Removal Commn, 776 F. Supp. 309, 313-14 (W.D. Ky. 1991) (finding promises clause overbroad and providing narrowing interpretation).
117
See supra notes 40-45 and accompanying text.
118
Cf. White, 536 U.S. at 819 (Ginsburg, J., dissenting) (arguing that, without the announce clause to prevent such speech, candidates could avoid the restriction on promises and pledges by simply avoiding the language of promises or pledges altogether); Buckley, 997 F.2d at 228 (Posner, J.) (observing that judicial candidates may make explicit and implicit commitments with respect to a particular issue and noting the difficulty of crafting a rule that reaches both without gag[ging] the judicial candidate); see also
THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072 supra note 33 and sources cited therein (discussing the pressures campaigns place on judges seeking election or reelection).
119
See 2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f) (providing that a judge shall disqualify himself or herself in a proceeding in which the judges impartiality might reasonably be questioned, including... instances where... the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to(i) an issue in the proceeding; or(ii) the controversy in the proceeding).
120
121
Sullivan & Gunther, supra note 63, at 346.
122
123
See Chemerinsky, supra note 64, 11.2.2, at 910 (A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted.); see also infra notes 169-180 and accompanying text.
124
See Tribe, supra note 63, 12-2, at 789. While he does not employ the terminology used above, Professor Tribe has explained the distinction as follows: Government can abridge speech in either of two ways. First, government can aim at ideas or information, in the sense of singling out actions for government control or penalty either (a) because of the specific message or viewpoint such actions express, or (b) because of the effects produced by awareness of the information or ideas such actions impart.... Second, without aiming at ideas or information in either of the above senses, government can constrict the flow of information and ideas while pursuing other goals, either (a) by limiting an activity through which information and ideas might be conveyed, or (b) by enforcing rules compliance with which might discourage the communication of ideas or information. Id. 12-2, at 789-90.
125
126
See Stone et al., supra note 63, at 1004.
127
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994) ( As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.).
128
See id. at 643 ([L]aws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.); Tribe, supra note 63, 12-23, at 977-78 (observing that content-neutral regulations incidentally burden speech where government does not aim at ideas or information but seeks a goal independent of communicative content or impact, with the indirect result that the flow of information or ideas is in some significant measure constricted).
25
129
See Turner Broad., 512 U.S. at 642 (stating that intermediate scrutiny is applied to content-neutral regulations because such regulations pose a less substantial risk of removing particular viewpoints from public discourse).
130
131
Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002) (quoting Republican Party of Minn. v. Kelly, 247 F.3d 854, 861 (8th Cir. 2001)).
132
See 2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f): A judge shall disqualify himself or herself in a proceeding in which the judges impartiality might reasonably be questioned, including... instances where... the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to(i) an issue in the proceeding; or(ii) the controversy in the proceeding.
133
While the 2003 revisions to Canons 3 and 5 are clearly intended to work together, that fact alone is not determinative of either revisions constitutionality--particularly if a reviewing court examines each revised rule in isolation. Compare White, 536 U.S. at 770, 773 (majority opinion) (examining announce clause without regard to pledges and commitments clauses), with id. at 812-21 (Ginsburg, J., dissenting) (arguing that announce clause should be examined as part of an integrated system of judicial campaign regulation).
134
See 2003 Model Code of Judicial Conduct, supra note 5, Canon 5(A)(3)(d)(i): A candidate for judicial office... shall not with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
135
See id. Canon 3(E)(1)(f).
136
Not only would this chill unprotected speech, but it would also chill protected speech and thus leave the rule ripe for an overbreadth challenge. See infra notes 159-168 and accompanying text.
137
For two examples of this argument, see White, 536 U.S. at 816 (Ginsburg, J., dissenting) (When a judicial candidate promises to rule a certain way on an issue that may later reach the courts.... she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail.), and Republican Party of Minn. v. Kelly, 247 F.3d 854, 878 (8th Cir. 2001) (arguing that many judges have the fortitude to resist [the pressures of voter discontent], but we do not doubt that the potential of supporter abandonment at the next election can weigh heavily on judges who know they were elected based on representations they made during the last campaign), revd sub nom. Republican Party of Minn. v. White, 536 U.S. 765 (2002).
138
Indeed, were the rule rigorously enforced by an extrajudicial body, such as a judicial conduct board, the rule may be more restrictive than the announce clause, as reasonable people may differ as to when a judges impartiality might reasonably be questioned. The rule may, therefore, suffer from an overenforcement problem. For more on the risk of the rules overenforcement or abusive enforcement in the vagueness context, see infra notes 169-180.
139
It could be argued that the disqualification rule is permissible because it is sufficiently analogous to the rules that prohibit political activity on the part of federal employees, see 5 U.S.C. 7323-7324 (2000) (prohibiting federal employees from, inter alia, using their official authority or influence to interfere with or affect the outcome of an election or running as candidates for election to a
THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072 partisan political office), the constitutionality of which the Supreme Court upheld in the face of a First Amendment challenge, see United States Civil Serv. Commn v. Natl Assn of Letter Carriers AFL-CIO, 413 U.S. 548, 556 (1973) (Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.). A similar argument, in fact, was put forward by the Eighth Circuit in its decision upholding the announce clause. See Kelly, 247 F.3d at 868-69 (arguing that the Courts reasoning [in Letter Carriers] could as well have been written about judges and in fact applies with even greater urgency to them). This argument, however, is implicitly foreclosed by Justice Scalias White opinion, which placed particular emphasis on the fact that the announce clause operated to restrict campaign speech by candidates for elective judicial office. See White, 536 U.S. at 781 ([T]he notion that the special context of electioneering justifies an abridgement of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head.); id. at 782 (We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.). While the rules upheld in Letter Carriers restrict certain political activity on the part of federal employees, they do not restrict the campaign speech of candidates for elective office. See 5 U.S.C. 7323. This reasoning applies with equal force to the disqualification rule, which also operates to restrict candidate speech during elections. The Letter Carriers analogy is also inapposite because, as Michelle Friedland notes, the rules upheld in the Letter Carriers decision were primarily intended to prevent actual misuse of public funds and coercion, Friedland, supra note 42, at 612, motivations which do not appear to underlie the disqualification rule.
140
Although they ultimately have the effect of restraining speech, it would not be correct to characterize the ABAs 2003 revisions as placing a prior restraint on candidate speech. Cf. Tribe, supra note 63, 12-34, at 1040-41 (arguing that courts frequently err by using prior restraint doctrine in circumstances where the speech at issue is already constitutionally protected); Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 Minn. L. Rev. 11, 14-15 & n.17 (1981) (noting overreliance on the rhetoric of prior restraint as a substitute for more discriminating analysis and suggesting that, under a lax conception of the doctrine, virtually any regulation can be seen as constituting a prior restraint). The doctrine of prior restraints generally involves inquiry into the permissibility of licensing requirements and court-ordered injunctions that have the effect of burdening or preventing speech before it is uttered. See Stone et al., supra note 63, at 1101-12; Sullivan & Gunther, supra note 63, at 361-73. Moreover, [t]he prior restraint doctrine is theoretically distinct from speech regulations that impose subsequent punishment. Marla Brooke Tusk, Note, No-Citation Rules as a Prior Restraint on Attorney Speech, 103 Colum. L. Rev. 1202, 1223 (2003) (arguing that the prior restraint/subsequent punishment dichotomy stems from the perceived difference in outcome between stopping a communication before it occurs and imposing a penalty after the communication has taken place). For a discussion of the conceptual underpinnings of the prior restraint doctrine and its relationship with the subsequent punishment regime, see generally Blasi, supra.
141
See Sullivan & Gunther, supra note 63, at 368 (suggesting that an effective threat of subsequent punishment can have an equally deterrent effect on speech); Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory, 70 Va. L. Rev. 53, 99-100 (1984) (stating that the distinction should be relevant only when a regulation restricts speech prior to a full and fair hearing before an independent judicial forum).
142
See White, 536 U.S. at 774-75.
143
See Report to the House of Delegates, supra note 6, at 12.
144
See supra note 114.
145
146
See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1176, 1177 (1996). Since 1939, the Court has
27
recognized that regulations not directed at expressive activity per se may nonetheless incidentally affect and therefore impermissibly restrict such activity. See Schneider v. State, 308 U.S. 147, 163-64 (1939) (invalidating anti-littering ordinance because it had the effect of preventing distribution of political leaflets on public streets and sidewalks). In this area the Court has primarily focused on regulations that have an impact on the exercise of communicative or symbolic conduct, recognizing symbolic conduct as a category of constitutionally protected speech. See Sullivan & Gunther, supra note 63, at 220-43 (examining cases addressing regulations which prohibited, inter alia, destruction of draft cards, flag burning, and nude dancing); see also Louis Henkin, The Supreme Court, 1967 Term--Foreword: On Drawing Lines, 82 Harv. L. Rev. 63, 79-80 (1968) (A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak.... If it is intended as expression, if... it communicates... it is speech.). Here, however, the ABA disqualification rule is targeted at speech rather than expressive conduct. Nonetheless, the constitutional inquiry is largely the same. See Dorf, supra, at 1200-02.
147
Dorf, supra note 146, at 1176. Distinguished here are laws of general applicability that incidentally burden protected rights but do not implicate the Constitution. See David Bogen, Generally Applicable Laws and the First Amendment, 26 Sw. U. L. Rev. 201, 202 (1997); Note, Neutral Rules of General Applicability: Incidental Burdens on Religion, Speech, and Property, 115 Harv. L. Rev. 1713, 1713 (2002). The Supreme Court has generally been hesitant to apply heightened scrutiny to laws of general applicability that incidentally burden speech. See Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991); Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (Scalia, J., concurring) ([T]he challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all.). These cases would not be implicated in the context of the ABA disqualification rules application to judicial campaign conduct, even though the rule is a neutral rule of general applicability (it is not targeted at speech and applies equally to all judges), because it fails the intermediate scrutiny test articulated in United States v. OBrien, 391 U.S. 367, 377 (1968). Cf. Arcara, 478 U.S. at 706-07 ([W]e have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place... or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity....); see also Tribe, supra note 63, 12-23, at 978-79 n.2 (noting that when neither the law, nor the act triggering its enforcement, has any significant [F]irst [A]mendment dimension, the fact that the law incidentally burdens speech should not render it constitutionally infirm). For discussion of the OBrien test, see infra notes 150-156 and accompanying text.
148
Dorf, supra note 146, at 1200.
149
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994) (discussing differing levels of scrutiny applied to content-based and content-neutral regulations); Larry A. Alexander, Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory, 44 Hastings L.J. 921, 927 (1993) (observing that the entire body of laws is subject to [incidental burdens] First Amendment analysis); Dorf, supra note 146, at 1177-78 (Nearly every law will, in some circumstances, impose an incidental burden on some right.).
150
391 U.S. at 377. The OBrien Court stated that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. Id. at 376. Accordingly, the Court held that a regulation which incidentally burdens speech is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377. The test thus closely resembles the intermediate scrutiny test employed in the Courts gender cases. See, e.g., Nguyen v. INS, 533 U.S. 53, 60 (2001) (stating that gender-based classifications must serve important governmental objectives and be substantially related to the achievement of those objectives (internal quotation marks omitted)). The tests are not identical, however, since the OBrien tests third element performs a critical switching function at the threshold: in situations where the state interest is related to the suppression of free expression, strict scrutiny is required unless the speech is in an unprotected category; but where the state interest is unrelated to the suppression of free expression, balancing (albeit reasonably strong balancing) is the appropriate response. Sullivan & Gunther, supra note 63, at 225. The OBrien test has become canonical in the review of content-neutral laws. Id.
151
See Ward v. Rock Against Racism, 491 U.S. 781, 797-98 (1989) (reaffirming that an incidental regulation of protected speech must
THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072 be narrowly tailored to serve the governments legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so).
152
See Tribe, supra note 63, 12-23, at 982-85 (stating that where equally effective avenues for the exercise of speech remain, the regulation will survive intermediate scrutiny; where no such avenues are readily available and the regulation limits access to alternate avenues, the regulation should fail).
153
154
Id.
155
One of the more puzzling aspects of the OBrien decision is the Courts statement that it will not look into legislative intent when examining a law that does not on its face burden speech. See OBrien, 391 U.S. at 383-86. This statement is notable because not only does the Court often look into motive when examining a statute or administrative regulation, but also because the OBrien test itself necessitates at least some inquiry into motive. See Chemerinsky, supra note 64, 11.3.6.2, at 1029. Accordingly, the Courts statement regarding motive must be strongly qualified. Tribe, supra note 63, 12-6, at 825. Where there is persuasive proof that a rule that restricts or penalizes the exercise of speech is significantly motivated for the purpose of such restrictions or penalties, the rule should trigger strict scrutiny even if such a rule is content neutral on its face. Id.
156
Were the disqualification rule to be subjected to intermediate scrutiny, it is still unlikely that it would satisfy the final prong of the OBrien test--that the restriction be no greater than necessary to further the governments substantial interest. OBrien, 391 U.S. at 377. A regulation will satisfy this requirement if the means chosen are not substantially broader than necessary to achieve the governments interest. Ward, 491 U.S. at 798-800. Here, the means chosen are, in fact, substantially broader than necessary, because the rule as currently drafted is both overbroad and vague and because a standard similar to the Texas recusal standard would likely achieve the same goals as the disqualification rule without unduly restricting judicial candidates speech. See infra notes 197207 and accompanying text.
157
158
Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)).
159
For two classic discussions of First Amendment overbreadth doctrine proposing distinct theoretical approaches, see generally Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, and Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970) [hereinafter Harvard Note]. See also Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853 (1991) (expanding on Professor Monaghans theoretical approach).
160
Chemerinsky, supra note 64, 11.2.2, at 912.
161
Fallon, supra note 159, at 863.
29
162
Monaghan, supra note 159, at 1-2. Professor Monaghan has argued that the claim that the Court departs from its traditional standing doctrine in overbreadth cases is specious because overbreadth analysis is simply an examination of the merits of the substantive constitutional claim, id. at 3, and applies the conventional principle that any litigant may insist on not being burdened by a constitutionally invalid rule, id. at 37.
163
See Harvard Note, supra note 159, at 844 (Unless the bare terms reveal inescapable and thoroughgoing invalidity, the Courts role is to truncate overbroad legislation by eliminating the bad applications as they arise.).
164
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Because it results in facial invalidation, First Amendment overbreadth doctrine may condemn a statute which comprehends a range of applications against privileged activity even though the interests it promotes outweigh the infringement of [F]irst [A]mendment liberties. Harvard Note, supra note 159, at 845. For this reason the doctrine has been described as manifestly, strong medicine. Broadrick, 413 U.S. at 613; see also Richard H. Fallon, Jr. et al., Hart and Wechslers The Federal Courts and the Federal System 193 (5th ed. 2003) (Both the Supreme Court and scholarly commentators have regularly characterized First Amendment overbreadth doctrine as strong medicine that ought to be applied sparingly.). Professor Fallon, however, notes that oftentimes the medicine of facial invalidation is not necessarily as strong as the Court says it is. See Fallon, supra note 159, at 877-83.
165
Tribe, supra note 63, 12-27, at 1022; see also Fallon et al., supra note 164, at 189 (noting that the Court will not strike a regulation as overbroad if the regulation can be easily narrowed). However, a court must be careful not to render the regulation unacceptably vague in the process of adopting a narrowing construction. See Tribe, supra note 63, 12-29, at 1031 n.9 (noting that a narrowing construction is only acceptable if it precisely describes the protected speech that will fall outside the statutes reach).
166
Chemerinsky, supra note 64, 11.2.2, at 913; see also Natl Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) (stating that litigants seeking facial invalidation must show a substantial risk that a challenged regulations application will burden speech); Broadrick, 413 U.S. at 615 (stating that a statute must be substantially overbroad for an overbreadth challenge to succeed). The substantiality requirement can be justified for the simple reason that [m]ost laws affecting expressive activity comprehend at least some unconstitutional applications. Harvard Note, supra note 159, at 844. Overbreadth doctrine is usually explained as being motivated by a concern that an overbroad statute will have a chilling effect on the speech of individuals who cannot or do not want to bear the litigation costs necessary to challenge the statutes burdens on their constitutionally protected speech. A decision that a statute is impermissibly overbroad is intended to ameliorate this chilling effect. See Sullivan & Gunther, supra note 63, at 348.
167
See supra note 132.
168
Cf. Tribe, supra note 63, 12-32, at 1036-37: When the Supreme Court declares a statute void on its face for overbreadth, such a holding implies two conclusions: first, that a saving construction is unavailable, usually because there is no precise category of protected conduct which can be clearly enough stated to fall outside the reach of the statute; and second, that to attempt a limiting construction of a statute without such a determinate rule of first amendment privilege would turn an overbroad law into a vague one.
169
See Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) ([W]e have traditionally viewed vagueness and overbreadth as logically related and similar doctrines.); Fallon, supra note 159, at 904 (At a minimum, the First Amendment overbreadth and vagueness doctrines have common rationales. But a stronger claim is warranted: First Amendment vagueness doctrine... is best conceptualized as a subpart of First Amendment overbreadth doctrine.); see also Monaghan, supra note 159, at 17 (It has been long clear in conventional constitutional challenges that an attempted saving construction may patch one constitutional difficulty while simultaneously resulting in the different but equally impermissible vice of indefiniteness.).
170
Fallon, supra note 159, at 903-04.
171
Kolender, 461 U.S. at 357. As with many First Amendment doctrines, the Courts concern with vagueness can be (and has been) simply stated as a general concern about a vague regulations chilling effect on speech. See Reno v. ACLU, 521 U.S. 844, 871-72 (1997). Given the Courts concern with abusive enforcement, however, it is clear that the doctrine is motivated by more than just concerns about the chilling effect of vague regulations.
172
See Kolender, 461 U.S. at 353-54 (finding statute unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment). For discussions of vagueness doctrine not limited to the First Amendment context, see generally Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 Cal. L. Rev. 491 (1994); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).
173
Kolender, 461 U.S. at 357-58; see also Natl Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) (describing First Amendment vagueness doctrine as protecting against arbitrary and discriminatory enforcement of vague standards).
174
175
See Fallon, supra note 159, at 903-04.
176
See Tribe, supra note 63, 12-32, at 1035 (Those whose expression is chilled by the existence of an overbroad or unduly vague statute cannot be expected to adjudicate their own rights, lacking by definition the willingness to disobey the law.).
177
A vagueness finding requires that a regulation must be so imprecise that discriminatory enforcement is a real possibility. Gentile v. State Bar, 501 U.S. 1030, 1051 (1991). Enforcement of the disqualification rule by state officials can come from two fronts: enforcement by judges through sua sponte disqualification or in response to disqualification or recusal motions brought by litigants, and enforcement by judicial conduct commissions charged with enforcement of the state codes of judicial conduct. There is a real risk of abusive enforcement of the rule resulting from strategic disqualification motions brought by litigants: Because the rule is unclear as to precisely what speech is permitted and what is prohibited, a litigant can take advantage of that indefiniteness by bringing disqualification motions she otherwise would not in order to achieve a litigation advantage. This imprecision may lead to higher judicial enforcement of the rule than if its contours were more precisely defined. The result--a judges disqualification from a particular case or reversal of a decision on appeal--is arguably as serious as the consequences of a violation of a campaign speech restriction: censure or temporary suspension. See, e.g., In re Bybee, 716 N.E.2d 957, 963 (Ind. 1999) (per curiam) (concluding that public reprimand was appropriate punishment for former candidates violation of misrepresentation clause); Summe v. Judicial Ret. & Removal Commn, 947 S.W.2d 42, 48 (Ky. 1997) (upholding thirty-day suspension of a judge for violation of misrepresentation clause); see also supra note 15 (discussing views of the disqualification alternative to campaign speech restrictions as constituting electoral fraud).
178
See supra note 40.
31
179
180
See 1990 Model Code of Judicial Conduct, supra note 39, Canon 3(E)(1) & cmt.
181
See Friedland, supra note 42, at 607-08 (arguing that the word commit can be defined to mean essentially the same thing as announce).
182
Flamm, supra note 4, 27.45.1, at 823; see also Charles Bleil & Carol King, Focus on Judicial Recusal: A Clearing Picture, 25 Tex. Tech. L. Rev. 773, 785 (1994) (Before the Code [of Judicial Conduct] was adopted, the law in Texas had long been that only a constitutional disqualification could prevent a judge from sitting in a case.). The Texas Constitution requires disqualification in three cases: where the judge is interested, where the litigants are connected with the judge, either by affinity or consanguinity, or if the judge previously had been counsel in the case. Tex. Const. of 1876, art. V, 11 (1891).
183
See Bleil & King, supra note 182, at 785. Prior to the Codes adoption some Texas judges had looked to the ABAs 1924 Canons for guidance, but the Canons lacked the force of law and did not have a formal impact on the development of Texas law. See Flamm, supra note 4, 27.45.2, at 825.
184
See Bleil & King, supra note 182, at 784-85 (emphasis added) (quoting original disqualification provisions, Tex. Code of Judicial Conduct Canon 3(C)(1) (1974)).
185
Flamm, supra note 4, 27.45.2, at 825.
186
See Bleil & King, supra note 182, at 785-86 (noting that many courts and commentators saw the Code as merely advisory and lacking any means for enforcing its provisions); 48 Robert P. Schuwerk & Lillian B. Hardwick, Texas Practice Series: Handbook of Texas Lawyer and Judicial Ethics 38.03, at 1226 (2003) (noting that even after the Codes adoption, some courts saw disqualification grounds as emanating only from the state constitution and the resulting statute).
187
See Tex. R. Civ. P. 18b (requiring a judges recusal in any proceeding in which... his impartiality might reasonably be questioned); J-IV Invs. v. David Lynn Mach., Inc., 784 S.W.2d 106, 108 (Tex. App. 1990) (referring to Canon 3(C) of the Texas Code of Judicial Conduct as the forerunner of Texas Rule of Civil Procedure 18b(2)); see also Bleil & King, supra note 182, at 791-92 (noting that the Texas Rules of Civil Procedure are binding and have the same force and effect as statutes).
188
Flamm, supra note 4, 27.45.6, at 830.
189
Schuwerk & Hardwick, supra note 186, 37, at 1221.
190
See, e.g., In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998). In e-mail correspondence with this Notes author, Lillian Hardwick, a Texas practitioner and co-author of the leading treatise on Texas judicial ethics, observed that Texas law on recusal and disqualification is ... confusing and misunderstood by many courts and practitioners. E-mail from Lillian B. Hardwick, Of Counsel, Caddell & Chapman, to Author (Feb. 11, 2004, 15:40 EST) [hereinafter Hardwick E-mail] (on file with the Columbia Law Review). Texass disqualification and recusal law is also complicated by substantive disagreements over when a judge should disqualify or recuse herself and when she should refrain from doing so. Compare Rogers v. Bradley, 909 S.W.2d 872, 874 (Tex. 1995) (Gammage, J., decl. of recusal) (concluding that judges should recuse themselves whenever their impartiality might reasonably be questioned, regardless of the source or circumstances giving rise to the question of impartiality and even though the source and circumstances may be beyond the judges volition or control), with id. at 879-82 (Enoch, J., resp. to decl. of recusal) (arguing that a judge should only recuse herself if a reasonable member of the public at large... would have a reasonable doubt about the judges impartiality as a result of the judges conduct, not the conduct of some third party). There is no doubt, however, that judges are required to comply with the Code and may be punished for willful violation of its provisions. See Tex. Const. of 1876, art. V, 1-a(6)(A) (1984) (providing that judges may be removed from office, disciplined, or censured for willful Code violations); Tex. Code of Judicial Conduct Canon 6(A) (requiring compliance with the Code by most state judges); id. Canon 8(A) (stating that [t]he Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges and is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct).
191
See Texas Amendments, supra note 1, at 4-6; see also supra notes 1-3 and accompanying text.
192
See Smith v. Phillips, No. CIV. A.A-02CV111JRN, 2002 WL 1870038, at *1 (W.D. Tex. Aug. 6, 2002). The old provision prohibited candidates from making statements indicating an opinion on issues that may come before the court to which the judge was elected. See Texas Amendments, supra note 1, at 4 (reprinting previous Canon 5(1)).
193
Compare Texas Amendments, supra note 1, at 4 (reprinting previous Canon 5(1)), with Tex. Code of Judicial Conduct Canon 5(1)(i) (2002) (containing revised promises clause). Schuwerk and Hardwick observe that [c]lose examination of former Texas Canon 5(1) in comparison with the revised language may not yield a determination of much, if any, substantive difference. Schuwerk & Hardwick, supra note 186, 29.02, at 1075; see also Hardwick E-mail, supra note 190 ([T]he revised Canon 5 said basically the same thing as the original, though the amended version was written better....).
194
Tex. Code of Judicial Conduct Canon 5 cmt.
195
Schuwerk & Hardwick, supra note 186, 29.02, at 1075. The state constitution does, however, provide for the removal of judges from office for willful violation of the Code of Judicial Conduct. Tex. Const. of 1876, art. V, 1-a(6)(A) (1984). One Texas court observed that this provision has elevated the importance of the Code. Ludlow v. DeBerry, 959 S.W.2d 265, 283 n.9 (Tex. App. 1997) (opinion on rehg).
196
Tex. R. Civ. P. 18b(2)(a) (A judge shall recuse himself in any proceeding in which... his impartiality might reasonably be questioned....). The Code does instruct judges to comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, thereby making a violation of the law a Code violation as well. Tex. Code of Judicial Conduct Canon 2(A) (2002).
197
It is not immediately clear what legal effect, if any, the Texas Supreme Court intended the comment to have. See Hardwick E-mail, supra note 190 (Trying to get at the legal effect (if any) the court intended the commentary to have is quite an undertaking....). Canon 8(A) sets forth rules of construction for the Codes various provisions, but makes no mention of how the Canon 5 comment is
33
to be construed. See Tex. Code of Judicial Conduct Canon 8(A) (2002) (stating that the Codes provisions are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances). A logical explanation for this is that, prior to the post-White amendments, the Code did not contain any commentary, and the court simply neglected to make a corresponding amendment to Canon 8(A). See Schuwerk & Hardwick, supra note 186, at 1063 n.1 (noting that the 2002 amendments marked the first addition of commentary to the Code). Nevertheless, since the Code does not have legal effect in the same respect as statutes or court rules--while judges are obligated to act in accordance with the Codes requirements, Code violations can be remedied only via proceedings brought by the Texas Commission on Judicial Conduct, see Tex. Const. of 1876, art. V, 1-a(6)(A) (1984); Hardwick E-mail, supra note 190 (noting that a legal proceeding cannot be stayed on the basis of a suspected Code violation in order to seek a ruling from the Commission)--it seems clear that, at a minimum, the court intended the comment to serve only as a guide or standard for interpreting the Code and its interaction with the recusal rules, and did not intend for it to serve as a formal basis for disciplining a judge.
198
That Texass recusal rules are not located within its Code of Judicial Conduct is of no consequence for this analysis.
199
See supra notes 120-123 and accompanying text. The recusal standard would also survive intermediate scrutiny. See supra note 150 for a discussion of the intermediate scrutiny test articulated in United States v. OBrien, 391 U.S. 367, 377 (1968). The recusal standard satisfies each of the OBrien tests four elements: it is within the constitutional power of the state to regulate the conduct of sitting judges through the adoption of recusal standards, see supra note 52 and accompanying text; the standard furthers the important state interest of preserving judicial impartiality, see supra note 114; the standard applies to judicial conduct and is not directed at the suppression of free expression, contra supra notes 153-156 and accompanying text; and the burden the standard places on judicial candidates speech is no greater than is necessary to further the states interest in preserving judicial impartiality, contra supra note 156. Of the OBrien tests four elements, the third element poses the greatest difficulty for the recusal standard because the standard applies to statement[s] made during a campaign for judicial office. Tex. Code of Judicial Conduct Canon 5 cmt. (2002). As a result, it could be argued that the recusal standard is related to the suppression of free expression, failing the OBrien tests third element and triggering strict scrutiny. OBrien, 391 U.S. at 377. This argument fails, however, because the recusal standard is not intended to restrict judicial candidates campaign speech, but is instead intended to signal--for both candidates and judges deciding recusal motions--the Texas Supreme Courts view that campaign statements may implicate the states recusal rules. See Schuwerk & Hardwick, supra note 186, 29.02, at 1076; infra note 206 and accompanying text. Unlike the ABAs disqualification rule, which adds a new requirement to the Model Codes disqualification regime, the recusal standard leaves it to judicial candidates to decide for themselves the relationship between their campaign statements and the states existing body of recusal law; it does not require the candidates subsequent recusal. Nor is there persuasive proof that the recusal standard is significantly motivated for the purpose of restricting speech, see Tribe, supra note 63, 12-6, at 825; supra note 155, particularly in light of the fact that the 2002 amendments to the Code were made in an effort to bring the Code in line with White and remove any impermissible burdens on speech, see Texas Amendments, supra note 1, at 1-2. Because the recusal standard simply makes explicit the implicit connection between a judges campaign conduct and that conducts bearing on the application of the states existing recusal law, the recusal standard and the interest it furthers are not related to the suppression of free expression.
200
Compare 2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f), with Tex. Code of Judicial Conduct Canon 5 cmt. (2002) (emphasis added).
201
2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f)(i)-(ii) (emphasis added).
202
See id. Canon 3(E)(1) (stating that a judge shall disqualify herself (emphasis added)).
203
See Tex. Code of Judicial Conduct Canon 5 cmt. (applying to [a] statement made during a campaign for judicial office, whether or not prohibited by this Canon (emphasis added)); cf. Schuwerk & Hardwick, supra note 186, 29.02, at 1076 ([P]ublication of the Texas Supreme Courts assessment that a statement made during a campaign may be a basis for recusal should inspire attorneys to cite such statements in recusal motions and induce judges who decide recusal motions to consider seriously such statements as grounds for recusal.).
204
See 2003 Model Code of Judicial Conduct, supra note 5, Canon 5(A)(3)(d)(i); supra notes 42-47, 133-135 and accompanying text.
205
206
See Schuwerk & Hardwick, supra note 186, 29.02, at 1076. In e-mail correspondence with this Notes author, Hardwick observed that the comment appears to be meant to give practitioners the idea that they could and should seek recusal if a judge has made a campaign promise that would suggest to a reasonable person that the judge would decide a case before him/her in a certain way, prior to even hearing the case, and said that she will suggest making recusal motions to lawyers who contact me with concern about a judge on their case with some scary campaign promises. Hardwick E-mail, supra note 190.
207
Schuwerk & Hardwick, supra note 186, 29.02, at 1076.
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536 U.S. 765 (2002).

2012 Thomson Reuters. No claim to original U.S. Government Works.

See infra notes 34-35 and accompanying text.

See infra note 41.

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Larkin, supra note 26, at 73.

Croley, supra note 23, at 724-25.

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provisions reach. Id. Canon 5(A)(3)(d)(iii).

Report to the House of Delegates, supra note 6, at 12.

Flamm, supra note 4, 1.4, at 10.

Cf. id. 1.4, at 11.

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Id. 1.4, at 12.

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2003 Model Code of Judicial Conduct, supra note 5, Canon 3(E)(1)(f).

See Report to the House of Delegates, supra note 6, at 11.

See infra notes 132-134 and accompanying text.

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Brown v. Hartlage, 456 U.S. 45, 53 (1982).

Buckley, 424 U.S. at 14-15.

See Eu, 489 U.S. at 231.

Brown, 456 U.S. at 54-55.

Burdick, 504 U.S. at 433.

Brown, 456 U.S. at 53.

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Buckley v. Valeo, 424 U.S. 1, 52 (1976).

Brown, 456 U.S. at 60.

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See supra note 84 (collecting cases).

See supra note 84 (collecting cases).

Kelly, 247 F.3d at 882.

Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

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See supra notes 40-45 and accompanying text.

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Report to the House of Delegates, supra note 6, at 11.

Sullivan & Gunther, supra note 63, at 346.

See infra notes 159-168 and accompanying text.

Sullivan & Gunther, supra note 63, at 212.

See Stone et al., supra note 63, at 1004.

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See infra notes 131-156 and accompanying text.

See id. Canon 3(E)(1)(f).

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See White, 536 U.S. at 774-75.

See Report to the House of Delegates, supra note 6, at 12.

See supra note 114.

See infra notes 159-180 and accompanying text.

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Dorf, supra note 146, at 1200.

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