FILED

Sanders County Republican Central Committee v. Bullock, 12-35543 SEP 17 2012

MOLLY C. DWYER, CLERK

SCHROEDER, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS

This decision is a big step backwards for the state of Montana, which we all

agree has a compelling interest in maintaining an independent and impartial

judiciary. The majority ignores the practical effects of its decision on that interest

when it takes a formulaic approach to First Amendment doctrine. This is the first

opinion to hold that even though a state has chosen a non-partisan judicial selection

process, political parties have a right to endorse candidates. This means parties can

work to secure judges’ commitments to the parties’ agendas in contravention of the

non-partisan goal the state has chosen for its selection process.

The Supreme Court in Republican Party of Minn. v. White (White I), 536

U.S. 765 (2010) recognized that judges have a life beyond the bench and make

statements throughout their legal careers on political and legal issues. “[J]udges

often state their views on disputed legal issues outside the context of

adjudication—in classes that they conduct, and in books and speeches.” Id. at 778.

Such activity differs from partisan endorsements. Judges’ public discussion of

their legal and political values therefore poses less of a threat to judicial open-

mindedness than do endorsements by political parties.

Partisan endorsements do not protect the candidate’s right to speak that was

at the core of White I. Nor is endorsement necessary to protect the rights of the members and leaders of political parties to express judicial candidate preferences

since they can lawfully endorse in their individual capacities.

This is thus an unwarranted extension of White I. This and other such

extensions of White I lead to disruptions and distortions in the non-partisan

processes states have developed in order to prevent judicial elections from turning

on promises to decide cases in ways that will get votes. Thirty-nine states have

judicial elections, and nearly all have enacted laws to treat judicial elections

differently from political elections. American Judicature Society, Judicial

Campaigns and Elections: Campaign Conduct, available at

http://www.judicialselection.us/judicial_selection/campaigns_and_elections/campa

ign_conduct.cfm?state=. The Conference of Chief Justices has decried the trend

toward eliminating these distinctions. Conference of Chief Justices, Declaration:

Judicial Elections are Different than Other Elections (2007), available at

http://ccj.ncsc.dni.us/JudicialSelectionResolutions/DeclarationJudicialElections.ht

ml. The Conference’s Declaration, quoting Chief Justice Roberts in his

confirmation hearing, states, “[j]udges are not politicians. They cannot promise to

do certain things in exchange for votes.”

The Supreme Court in White I held only that the state violated the First

Amendment when it prohibited “candidates for judicial election from announcing

2 their views on disputed legal and political issues.” 536 U.S. at 788. Today’s

decision extends this protection to political parties’ endorsements in previously

non-partisan elections. The result is to encourage a judiciary dependent upon

political alliances. Political endorsements place judges in a position of

indebtedness to “powerful and wide-reaching political organizations that can make

or break them in each election cycle.” Republican Party of Minn. v. White (White

II), 416 F.3d 738, 768 (8th Cir. 2005) (Gibson, J., dissenting). Partisan politics are

particularly pernicious because parties serve as “natural bundling agents that

coordinate sprawling political coalitions across all types of policy domains and

venues.” See Michael S. Kang & Joanna M. Sheperd, The Partisan Price of

Justice: An Empirical Analysis of Campaign Contributions and Judicial

Decisionmaking, 86 N.Y.U. L. Rev. 69, 107 (2011). Failing to recognize this, the

majority and the Eighth Circuit in White II err in concluding that political parties

are just another interest group. See 416 F.3d at 755.

Political endorsements, much more than judges’ discussion of issues, lead to

political indebtedness, which in turn has a corrosive impact on the public’s

perception of the judicial system. See Wolfson v. Brammer, 822 F. Supp. 2d 925,

931 (D. Ariz. 2011) (“Public confidence in the independence and impartiality of

the judiciary is eroded if judges or candidates are perceived to be subject to

3 political influence.”); Siefert v. Alexander, 608 F.3d 974, 985–86 (7th Cir. 2010)

(“Due process requires both fairness and the appearance of fairness in the

tribunal.”); see also Cox v. Louisiana, 379 U.S. 559, 565 (1965) (upholding state

statute prohibiting picketing outside a courthouse because of the state’s interest in

protecting “against the possibility of a conclusion by the public under these

circumstances that the judge’s action was in part a product of intimidation and did

not flow only from the fair and orderly working of the judicial process”); United

States Civil Service Commission v. National Association of Letter Carriers, 413

U.S. 548, 565 (1973) (upholding the Hatch Act’s ban on partisan activity by

federal civil servants because “it is not only important that the Government and its

employees in fact avoid practicing political justice, but it is also critical that they

appear to the public to be avoiding it . . . .”). Recognizing this, the Seventh Circuit

has held that a ban on judges’ endorsements of political candidates is not subject to

strict scrutiny and is constitutional. Siefert, 608 F.3d at 986 (“While White I

teaches us that a judge who takes no side on legal issues is not desirable, a judge

who takes no part in political machinations is.”).

The detrimental effects of the parties’ ability to endorse in judicial elections

is multiplied by their ability to engage in expenditures on behalf of or in opposition

to judicial candidates. See Citizens United v. Fed. Elec. Comm’n., 130 S. Ct. 876

4 (2010). The fact that political parties can back up their endorsements with

significant sums of money threatens to further erode state judges’ ability to act

independently and impartially. See Brennan Center for Justice, The New Politics

of Judicial Elections 2009–10 (2011), available at

http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics201

0-Online-Imaged.pdf.

In holding that Montana has a less restrictive means of structuring its

judicial selection process, the majority fails to comprehend that this would take

more than a simple tweak of the system. The majority presents judicial

appointment as a less restrictive means of achieving the state’s admittedly

compelling interest in an impartial judiciary and one that does not implicate the

First Amendment. See White I, 536 U.S. at 788–92 (O’Connor, J., concurring).

This alternative, however, is more theoretical than realistic. Despite dramatic

changes in judicial election processes, states have been reluctant to shift to judicial

appointments. See Roy A. Schotland, New Challenges to States’ Judicial

Selection, 95 Geo. L. J. 1077, 1081–82 (2007). As the American Judicature

Society has noted, no state in the past decade, since the Court’s decision in White I,

has used its democratic process to shift away from judicial elections. See

American Judicature Society, Chronology of Successful and Unsuccessful Merit

5 Selection Ballot Measures, available at

http://judicialselection.us/uploads/documents/Merit_selection_chronology_1C233

B5DD2692.pdf. “[A] generation of experience . . . makes it clear that elections

will stay in many and perhaps all of the states that have that system.” Conference

of Chief Justices, supra. In sum, a shift away from judicial elections is not a

realistic alternative in states that have chosen judicial elections.

Today’s decision is another step in the unfortunate slide toward erasing the

fundamental distinctions that states have created between their selection processes

for judicial offices and political offices. These distinctions are foundational to

states’ abilities to maintain separation of powers between the branches of

government. White I, 536 U.S. at 803–04 (Ginsburg, J., dissenting) (“Whether

state or federal, elected or appointed, judges perform a function fundamentally

different from that of the people’s elected representatives. . . . The ability of the

judiciary to discharge its unique role rests to a large degree on the manner in which

judges are selected.”). The Supreme Court’s decision in White I was not intended

to collapse these differences. The Court said, “[w]e neither assert nor imply that

the First Amendment requires campaigns for judicial office to sound the same as

those for legislative office.” Id. at 783.

The inevitable impact of increasing partisanship, coupled with the potential

6 for increasing volumes of monetary contributions, serves only to erode the

perceived and actual fairness of litigation in the state courts. These are the

unfortunate and unforeseen consequences of the majority’s unwarranted extension

of White I, especially when viewed in the light of Citizens United.

In my view, the Republican Central Committee should not succeed on the

merits of its argument that the ban on political parties’ endorsements is

unconstitutional. I therefore respectfully dissent and would affirm the denial of a

preliminary injunction.

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