28 January 2015

Electing judges seems inherently wrong to someone brought up in the traditions of the English legal system – as it has been transplanted to New Zealand.  Although few would regard politicians as corrupt because of the obligation they have to campaign for election, parliamentary and local government elections are explicitly party-political.  Public expectations are that elected candidates will deliver on campaign promises.

Most New Zealanders would think it improper that aspiring judges would pitch their suitability for office to the general public, although appreciating that the appointment process must involve would-be judges in varying degrees of self promotion to Ministers who are responsible for their selection.

Founding fathers in the United States championed appointed judges as the best way to provide a check on both the executive and the legislature, but 19th century populism swept away Federalist principles in many states. There was such faith in the democratic process that states saw explicit community support as an advantageous qualification for judicial office. Now, 39 states elect their judiciary. But all elections need funding, and fund raising is a problem for anyone seeking judicial office in those 39 states.

Last week the US Supreme Court appeared to be divided over whether elected judges should be allowed to directly solicit campaign contributions. The court is exploring whether it is lawful for Florida to ban judicial candidates from soliciting in person, or whether fundraising is an element of free speech rights. Florida law seeks to protect judges from “quid pro quo exchanges” where lawyers and litigants have donated to the campaign of a judge only to then appear in their court. The counter argument is that judges should be no different from candidates seeking election to positions in the legislature or the executive. It is about freedom of speech.

The case began with a mass mail out seeking funding assistance in a 2009 campaign for election to a county court bench. The Florida Bar argued that the candidate breached the prohibition on personal solicitation. She was reprimanded and fined by the Florida Supreme Court.

In the US Supreme Court only four justices appeared to accept Florida’s measures to distance the judiciary from corruption allegations often made about other elected office holders. The other Justices may well be attracted to First Amendment arguments by the time a decision is delivered mid year.