Judges are different

So, unlimited campaign money is a bad thing when judges are involved, says John Roberts.  Judges are different.  Mark Joseph Stern writes:

On Wednesday, Roberts halted his crusade against campaign finance reform in a stunning reversal that almost nobody—myself included—saw coming. In Williams-Yulee v. Florida Bar, Roberts joined the liberals to uphold a Florida measure that barred elected judges from personally soliciting campaign funds. (This is only the second time Roberts has sided with the four liberals against four dissenting conservatives; the first time was in the 2012 Obamacare case.) In his opinion, Roberts explains:

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.

Roberts’ logic here is simple and commonsensical. A state’s judiciary can function healthily only if citizens are content that judges apply the law impartially. If a judicial candidate is permitted to personally ask individuals to donate to her campaign, she may be tempted to treat her donors more favorably in the courtroom. Even if the judge herself remains unbiased, a reasonable observer may still believe that when she rules in favor of a donor, his donation influenced her thinking—consciously or unconsciously. This risk of corruption, actual or perceived, is enough to justify Florida’s narrow, sensible restriction on speech.

Why, then, does the hypothetical risk of corruption not justify restrictions onlegislative campaign finance and solicitation? Roberts doesn’t say, exactly—but the answer likely has something to do with judicial dignity. The conservative justices seemed skeptical of this notion at oral arguments, but between then and now, Roberts seems to have realized that permitting judges to panhandle would seriously undermine “public confidence in judicial integrity.” Roberts just isn’t that concerned about public confidence in legislative integrity—perhaps because he’s a judge, not a legislator, and understands that when judges beg people for money then rule in their favor, the principle of impartiality takes a huge hit. (On the other hand, Roberts seems to think that legislators voting in the interests of their highest donor is just democracy in action.)

Of course, judges actually are different, but it seems to me if you believe in “public confidence in judicial integrity” you damn well ought to believe in public confidence in legislative integrity.  And if Roberts thinks our crazy, post Citizens United campaign finance regime has not undermined public confidence in legislative integrity he’s got his head in the sand half-way to China.  But, of course, Roberts is a judge, and judges are special.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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