Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech

Abstract

In Republican Party of Minnesota v. White, the Supreme Court suggests that content-based restrictions on judicial campaign speech are unconstitutional unless they are narrowly tailored to protect litigants' due process rights. I argue that if this is so, all of the current state restrictions on judicial campaigning are unconstitutional. This is because, under my analysis of when litigants have a procedural due process right to disqualify a judge for past campaign speech, the current restrictions suppress speech even in circumstances in which the speech would not be grounds for disqualification. Moreover, even a very narrow restriction aimed only at preventing due process violations might be unconstitutional because disqualification may be a feasible less-speech-restrictive alternative to suppressing campaign speech. Even if very narrow speech restrictions could be adopted, however, I argue that states with judicial elections will experience significantly more substantive campaigning, including campaign promises, than they did prior to White. The ultimate effect of White therefore will be to make states choose between having judicial elections with widespread substantive campaigning and eliminating judicial elections altogether. Despite evidence that elections affect judicial decisionmaking, I argue that states can choose the former without jeopardizing the protection of individual rights.