Guest Commentary by Al Cross
Kentucky voters have a historic opportunity to put their stamp on the state’s judiciary this year, because every court seat will be on the ballot, except two on the State Supreme Court, and the candidates will be running under new rules that allow more freewheeling campaigns.
As members of the non-partisan, non-profit Kentucky Judicial Campaign Conduct Committee Inc., we look forward to spirited races, but we hope the candidates and public will remember that a judicial election is a special kind of election, with some basic principles:
• The public deserves judges who are open-minded and decide cases faithfully and impartially. Candidates may state their views on legal and political issues, but court rules say they may not say in advance how they might rule on a matter.
Candidates for court seats, whether elected or appointed, should understand the obligation to keep an open mind and make decisions based on the facts and law of a particular case. No one should ask a candidate to promise to decide a matter a certain way, and no candidate should make such a promise.
• Records of candidates are fair game in campaigns. But the records of judges, and of lawyers who want to be judges, can be easy to distort or misrepresent. Judges make hundreds of decisions during a term of office, and it’s inevitable that some will be unpopular — or turn out to be, or seem, mistaken. The easiest way to campaign against someone who has served on the bench is to pick out a few decisions and focus attention on them, or even on only one decision. And a lawyer’s legal career cannot always be defined by one case or a set of cases.
Voters should choose candidates on the basis of their complete records, and remember that the best judges are those who aren’t afraid to make decisions that might be unpopular. The judges’ code of conduct says, “a judge shall not be swayed by partisan interests, public clamor or fear of criticism.” The public doesn’t need, and shouldn’t want, judges who make decisions with the next election in mind.
• Judicial races in Kentucky have been non-partisan since 1975, when voters amended the state Constitution to create a four-level Court of Justice that is independent of the partisan political system. This means that judicial candidates should stay out of party politics, and voters should not ask them their affiliation or use that as a reason for their vote.
The non-partisan nature of judicial races is voters’ handiest reminder of the difference between judicial elections and other elections. Voters who expect a judge to have a platform on issues are expecting to have a judge whose mind is made up before hearing all the evidence. That is not what Kentuckians voted for in 1975, or what they need today.
• Judicial campaigns can be costly, and candidates in some races must raise money to compete. However, candidates must avoid the appearance of being indebted to their contributors. The public has a right to know who is contributing and how much, so candidates and campaign committees are required to make that information public, and the news media should report it.
In several states bordering Kentucky, interest groups and individuals have spent millions on campaigns for appellate-court seats, and bragged about their success — suggesting that the elected judges are obligated to decide cases the way their contributors want. Candidates should assure the public that they are not indebted to their contributors and must disavow any statements by interest groups that suggest candidates are bought and paid for.
After the 2004 elections, the director of Justice at Stake, a non-partisan watchdog group, said, “When you have any interest group treating its candidates like trophies on the wall, we have a risk to fairness and impartiality of the courts.” Now, the same group warns that with so many court seats up for election, Kentucky faces “the mother of all judicial elections” and “the potential for special-interest mischief abounds.”
• The public deserves a dignified judiciary, and a dignified judiciary requires dignified campaigning. The code of judicial conduct requires candidates to “maintain the dignity appropriate to judicial office” and to encourage their family members to do so as well. The code requires judges to know and be faithful to the law, to be “patient, dignified and courteous,” not to be “swayed by partisan interests or fear of criticism,” to “perform judicial duties without bias or prejudice” and to “dispose of judicial matters promptly, efficiently and fairly.”
Voters should vote for the candidates whose campaigns suggest they embody these qualities. The Kentucky Judicial Campaign Conduct Committee was created to encourage such campaigns.
If you want more info about campaigns for the courts, contact the Kentucky Judicial Campaign Conduct Committee Inc., 600 W. Main St., Louisville KY 40202. Our phone number is 583-5314, fax is 583-4113, e-mail is [email protected].
Al Cross is the secretary of the Kentucky Judicial Campaign Conduct Committee. Contact him at [email protected]