When Judges Pass The Collection Plate, Justice Suffers

Ron Fein Legal Director, Free Speech For People
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Supreme Court Justice Antonin Scalia may be both the funniest and most sarcastic of the Justices. But when he surprised a Yale Law School instructor with an unexpected question in the case Williams-Yulee v. The Florida Bar, Justice Scalia was deadly serious.

The case, argued in January, involves a Florida public defender named Lanell Williams-Yulee who ran for judicial office, but had some trouble with the rules of judicial campaigns. First, her web site described her as “judge elect,” even though, as the Florida Supreme Court later put it, she “had never been a judge and had not been elected.” A court-appointed referee gave her a mulligan because her campaign manager had apparently gone rogue.

But she couldn’t use that defense when she personally signed a letter asking for campaign cash. Signing that letter broke a clear rule saying that a candidate for judicial office “shall not personally solicit campaign funds.” Judicial campaigns need money, and the rule specifically allows “responsible persons” working for the campaign to solicit funds. But Florida — like thirty other states — sensibly draws the line at judicial candidates passing the hat themselves.

When brought to task, at first Ms. Williams-Yulee said she thought the rule didn’t apply to her. But by the time she got to the U.S. Supreme Court , she was arguing that the rule violates freedom of speech under the Constitution’s First Amendment.

At the Supreme Court, the Yale instructor representing Ms. Williams-Yulee spoke first, and he spoke well. Answering a question from the liberal Justice Ruth Bader Ginsburg, he allowed that Florida might have three reasons for ethics rules against judges soliciting money: it could lead to bribery; it could lead to judges who are biased in favor of current or potential campaign contributors; and, when a judge asks for something, it’s hard to say no.

These are all good reasons. And at this point, you can imagine, he was ready to give his best counterarguments against all those reasons.

But his battle plan didn’t survive contact with Justice Scalia. Before the Yale lawyer could say another word, Justice Scalia interrupted: “What about the interest in judicial dignity?”

That threw the lawyer a curve. The state’s legal brief hadn’t said anything about judicial dignity; that argument appeared only in a friend-of-the-court brief. But it’s a smart question. Justice Scalia was asking whether a state can prohibit judges asking for money because the very act of asking diminishes respect for the judiciary. We like to think of judges as wise, fair, and a bit removed — not hustling for donations like a street performer who passes around a hat after the show.

In Justice Scalia’s words, “there’s stuff we don’t let judges do that we let other people do.” Because, for a judge, “there are certain things that are infra dignitatem” — Latin for “beneath dignity.” That’s why states like Florida insist that judicial candidates must, while campaigning, “maintain the dignity appropriate to judicial office.”

The lawyer hemmed and hawed, but Justice Scalia’s point was made. In a way, Justice Scalia was evoking an earlier time, when the judge was the most respected figure in town, known for wisdom, judiciousness, and, well, dignity. In some parts of America, that ideal might endure. But big-money judicial races, in which judges must dial for dollars like Chicago aldermen, are breaking down the values of judicial respect that Americans have held dear. As one Ohio Supreme Court justice admitted of the fundraising circus, “I never felt so much like a hooker down by the bus station … as I did in a judicial race.”

This isn’t a free speech issue; it’s an issue of fostering respect for the rule of law. Preserving the dignity of the judiciary is important, and it’s threatened by the spectacle of a sitting or aspiring judge hustling for donations like a Brooklyn machine politician. That’s why Justice Scalia compared a judge soliciting contributions to a “mendicant” who was “holding [his] hat out asking people for money.” By the end, even liberal Justice Ginsburg might have been convinced, suggesting that a state might say “we want our judiciary to be above the political fray so we have this kind of restriction on putting themselves forward as the solicitor.”

It’s too soon to tell how the Court will rule, and the questions the justices ask at oral argument don’t always signal their final decisions. But, as Justice Scalia understands, we deserve a justice system worthy of our respect. And that means that judges should leave the fundraising to others.