Law Matters: Promises, Promises ... What Should a Judicial Candidate Say?
Content date: 05/30/2006

The following reflections of Missouri Chief Justice Michael A. Wolff make up his May 2006 Law Matters column.

In the vast majority of the 115 counties in Missouri, candidates for associate circuit judge and circuit judge run on partisan ballots much like candidates for legislative and executive branch offices. In Clay, Jackson, Platte and St. Louis counties, the city of St. Louis, the Court of Appeals and the Supreme Court of Missouri, judges are nominated and appointed under Missouri's nonpartisan court plan and face the voters periodically in yes-or-no retention elections.

So what do you, as a voter, want to know about the personal views of candidates running for judge?

After all, haven't we come to expect promises from candidates? We are used to candidates for legislative and executive branch offices telling us, for instance, that they believe that public schools should be permitted to conduct prayer sessions for students, or that they believe the right of individual citizens to keep and bear arms should be protected.

Campaign promises are expected because legislators set policy, and executive branch officials such as the governor carry out clear visions of their own. When voters elect people to these branches of government, the voters generally expect that the successful candidates will keep their campaign promises. Because of this, all sorts of interest groups send questionnaires to and conduct interviews of candidates to ascertain their views to decide whom to support. In fact, some interest groups spend millions of dollars supporting candidates for legislative and executive office.

Candidates for judicial office, however, are very different from those running for legislative or executive branch offices. When an issue comes before a court, do you want your case to be decided by someone who already has announced his or her position on the matter during a campaign? Or would you rather have the opportunity to present the facts, issues and law as you see them before the judge makes a decision?

When citizens are summoned to serve as jurors in our courts, they often are asked whether they can set aside their own personal views and follow the law. If they say they cannot do so, then they are not selected for jury service. We should be able to expect the same of judges, regardless of whether they were elected in partisan elections or selected under the nonpartisan court plan.

My own opinion is that candidates for judge should make only two fundamental promises:
  1. They will decide cases fairly and impartially, free of political influence or intimidation; and
  2. Regardless of their own personal view or the views of the voters, they will follow the law. This includes the Constitutions of the United States and the state of Missouri, and the statutes, enacted either federal or state.

Until recently, the code of judicial conduct prohibited judicial candidates from announcing their positions on issues that might be decided in the courts. The United States Supreme Court in 2002 decided, in a case from Minnesota, that such a judicial ethical rule violates the free speech clause of the First Amendment to the United States Constitution.

After this decision was issued, the Supreme Court of Missouri amended Missouri's code of judicial conduct to provide that, in effect, if a judicial candidate announces a position on an issue – which is his or her First Amendment right to do – that judge may have to recuse (or remove) himself or herself from hearing a case about that issue.

So be wary of judicial candidates who take positions on issues, because they cannot deliver on their promises. Answers to issues questionnaires or any campaign promises are not likely to tell you anything useful about how a judge will decide a case, or whether the judge will be able to sit on a case. If a candidate for judge promises, for instance, that as judge he or she will put in prison every person convicted of or pleading guilty to a felony charge, let the voters beware: This candidate has made a promise that, in all likelihood, will disqualify the candidate from sitting as a judge in felony criminal cases.

We Americans pride ourselves in the rule of law: the principle that no person – not even your local judicial candidate – is above the law. Courts provide checks and balances to the other co-equal branches of government. The rule of law means that judges do not simply follow the will of the majority or even their own personal viewpoints but rather must judge in accordance with what the Constitution and the law require.

Elections for judge are indeed different, and we as voters must approach judicial candidates differently. Instead of seeking campaign promises that a judge cannot keep if he or she is to do her job, we as citizens must undertake the task of determining each judicial candidate's character and experience.

In less populous areas especially, many voters know their candidates, either personally or by reputation. It is helpful to look at the candidates' experience, education and family, as well as civic, charitable and religious involvement. In the grand scheme of things, when it comes to the business of judging, who the candidate is seems far more important than what the candidate may say in special interest questionnaires or 30-second campaign ads.