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
So what do you, as a voter, want
to know about the personal views of candidates running for
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
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
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
My own opinion is that candidates for judge
should make only two fundamental promises:
- They will decide cases fairly and impartially, free of
political influence or intimidation; and
- 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
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
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
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.