Ethical Constraints on Judicial Election Campaigns: A Review and Critique of Canon 7

Abstract

"The best justice(s) money can buy." Such a characterization of a recent series of campaign contributions to justices of the Supreme Court of Texas is difficult to resist. Representatives of Texaco made campaign contributions totaling $72,700 to seven justices while the appeal in the $11 billion Pennzoil lawsuit against Texaco was pending before the court. Not to be outdone, Pennzoil lawyers countered with campaign contributions of more than $315,000. Moreover, three of the justices receiving Texaco contributions and four of those receiving Pennzoil contributions weren't even up for re-election.

Practices such as these inevitably raise questions concerning the integrity and impartiality of an elected judiciary. Can a judge resist the temptation to be influenced by such practices? Even if a judge is able to maintain his or her integrity and impartiality, will the judge's reputation still be open to question and the public's confidence in the judiciary diminished?

Ethics codes for judges and lawyers attempt to reconcile the perceived need for an elected judiciary with the general desire for a judiciary of unquestioned integrity, independence, and impartiality. In the notes to Canon 7 ("A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office") of the ABA's Code of Judicial Conduct, the Reporter for the drafting committee explained that the committee sought to deal with the "tensions between the demands of political reality and the necessity that a judge be impartial and appear to be impartial." He thus characterized the resulting subsections of Canon 7 as "compromises between political reality and the aim of maintaining the appearance of judicial impartiality." ' Although the Reporter did not elaborate on what was meant by "political reality," we might assume that it included such basic aspects of the electoral process as the notion that judicial candidates must be allowed to develop the resources (funds) to present themselves and their views to the electorate. We might then view the strictures of Canon 7 and similar ethics provisions as seeking to control judicial behavior during a political campaign in ways that will assure 1) faithfulness to the electoral process, and 2) judicial impartiality and the appearance of impartiality.

This article analyzes interpretations of relevant ethics provisions from jurisdictions that elect their judiciaries to determine the extent to which these regulations assist in 1) curbing judicial election campaign excesses while ensuring faithfulness to the electoral process, and 2) achieving the goal of an impartial judiciary whose reputation is beyond reproach. Part I reviews the ethics rules governing judicial election campaigns, and part II identifies the agencies responsible for their interpretation and enforcement. The case law and ethics advisory opinions interpreting these ethics rules are discussed and analyzed in parts III and IV. Part III focuses on restrictions on campaign appearances and advocacy, while part IV focuses on campaign financing. Part V concludes that these ethical constraints on judicial election campaigns raise serious questions concerning the effectiveness of an elected judiciary.