Restoring Civility to Judicial Contested Elections
~Contentious judicial elections
prompt Maryland judicial conduct campaign~
In the last ten years, contested judicial elections
in Maryland and across the nation have become increasingly contentious, tarnished
by incivility and partisanship. Incumbent judges face heightened acrimony
from challengers who, in some instances, strenuously criticize sitting judges'
records. Contested elections exacerbate and undermine the public's already
low confidence in our Judiciary, so a movement is underway nationally, and
in Maryland, to restore civility to contested judicial elections.
On May 1, the Honorable Robert M. Bell, Chief
Judge of the Maryland Court of Appeals, created the Maryland Judicial Campaign
Conduct Committee (MDJCCC) to promote civility and dignity in the conduct
of contested elections for Maryland's circuit court judges and restore respect
to the state's Judiciary. MDJCCC, a diverse, bi-partisan citizens' committee
co-chaired by former United States Attorneys George Beall and Stephen H.
Sachs, is launching an extensive public education campaign to educate voters
about judicial elections. MDJCCC has developed standards for the conduct
of contested judicial elections and is asking all candidates to subscribe
to them and pledge to honor them in writing, in an effort to restore civility,
integrity and legitimacy of the bench.
Twenty years ago, contested judicial
elections started appearing on the radar screen across the U.S. They grew increasingly
expensive, hitting the seven-digit mark in the late '80s when a judicial candidate
for the Texas Supreme Court raised and spent one million dollars, recalls University
of Maryland School of Law Professor Sherrilyn A. Ifill, a judicial elections
expert who serves as Vice-Chair of MDJCCC. As fewer judicial candidates ran
unopposed, these contests grew more contentious.
In 2002, the escalating incivility and political
contentiousness in judicial elections was compounded when the Supreme Court
of the United States, in Republican Party of Minnesota v. White, 536
U.S. 765, struck down restrictions on candidate speech that prevent judicial
candidates from announcing their views on legal and political issues on first
amendment grounds. The canon failed the strict scrutiny test to prove that
the announce clause was narrowly tailored to sufficiently serve the compelling
state interest of preserving the judiciary's impartiality and the appearance
Traditionally, judges stayed out of the political
fray. Required to be impartial, they did not want to compromise themselves
with statements made in political campaigns. "Before White,
announce clauses maintaining candidates running for judicial office should
not announce their views on contested legal questions were still in place
in a number of states," explains Ifill.
"This at least tempered some candidates'
responses, as well as their willingness to engage in discussions about legal
issues that might or might not come before the court," Ifill adds. "However, White removed
announce clauses and self-censorship on the part of many candidates and
"opened up the field for candidates to feel emboldened to challenge incumbent
judges on a number of issues."
In light of this ruling, the National Center
for State Courts (NCSC) implemented educational programs on state election
laws, judicial canons and rules of professional conduct and sanctions for
violations for all judicial candidates in 2004. It also recommended that
"their canons of judicial conduct, rules of professional conduct and state
and federal laws regarding judicial campaign activity to ensure the proper
balance of fair elections with the right to free speech."
"Several Maryland canons needed to be re-examined
in the context of White," states Rebecca Saybolt Bainum, MJDCCC
Staff Associate. In an attempt to accommodate the ruling in White,
the Maryland Judicial Ethics Committee and the Rules Committee of
the Court of Appeals incorporated into Canon 5 of the Maryland Code of Judicial
Conduct and Rule 8.2 of the Rules of Professional Conduct changes promoting
the free exercise of speech in judicial campaigns.
White lends legitimacy for more open
and robust debate in contested elections between Maryland judicial candidates. "In
Maryland, judges and judicial candidates can now say what their views are," notes
Ifill. "White has emboldened and elevated contentious dialogues
in recent state campaigns."
NCSC also encouraged states to adopt
new forms of judicial campaign-oversight and to date, 23 have obliged. Maryland
is one of 12 states that have created Judicial Campaign Conduct Committees.
MDJCCC is a volunteer, diverse, representative and bi-partisan group of Maryland
citizens with no formal authority. Its mission is to preserve the Judiciary's
reputation for fairness and impartiality and generate public respect for a
judge's role, integrity and objectivity.
MDJCCC's credo is simple: judicial elections
are different. Its thrust is to insure, through public education, that Maryland
judicial elections are conducted in a civil manner. Through public education,
MDJCCC hopes to convey the message that "judges represent the law. Judges
have a unique role so judicial candidates must be held to a higher standard
than candidates for other elective offices.
Judges must not only be unbiased and impartial
but must avoid any appearance of bias or partiality. Judicial candidates
should not support any political or ideological agenda. "Although Maryland
incumbents are bound by judicial ethics not to be partial, they are permitted
to respond to questions about their records. They are clearly within bounds
to respond to questions," stresses Ifill. "They must maintain impartiality
and maintain the dignity of the office."
To promote civility in judicial contested elections
across the state, MDJCCC has developed Standards for the Conduct of Contested
Judicial Elections to "level the playing field," explains Bainum.
MDJCCC is encouraging all judicial candidates, challengers and incumbents,
to honor them (see sidebar).
Civility and dignity are reflected in these standards. "We
have established standards to accompany the conversation that happens in
judicial campaigns that is reflective of the ways in which judicial elections
are different from other elections," declares Ifill. "It's about
how you speak and how you say what you say. MDJCCC is trying to hold
the line in some sense. We recognize the Supreme Court's supremacy in the White case
and we recognize that candidates need to talk about something in elections.
MDJCCC wants to help educate the public and judicial candidates and re-emphasize
the reality that judicial elections are different."
MDJCCC is asking all candidates, challengers
and incumbents, to subscribe to these Standards and pledge, in writing, to
abide by them in their campaigns. MDJCCC plans to publicly identify candidates
who have agreed to this pledge. The Committee will review all complaints
alleging violations and, where appropriate, will make further inquiry to
determine whether the challenged conduct comports with the letter and the
spirit of the Standards. Finally, MDJCCC will makes its findings public and
refer specific allegations to the Judicial Ethics Committee of the Attorney
"We hope all candidates will agree to abide
by the standards and will maintain dignity," concludes Ifill. "The
reality is that the judicial system derives its legitimacy from the public's
confidence. It is the public's sense of the bench's legitimacy that gives
the rule of law its power. Everybody suffers if there is an erosion of public
confidence in the law."