Hofstra Law School, which is well known for its Institute for the Study of Legal Ethics, has devoted the most recent issue of its law review to a conference on judicial ethics. A number of articles address the issue of judicial elections, particularly in the wake of the Supreme Court’s decision in Republican Party of Minnesota v. White. In that case the Court held that a candidate for judicial office had a First Amendment right to announce her views on disputed legal or political issues. There seems to be a sense that judicial election campaigns have become more like conventional races for legislative seats and, moreover, that this is a bad thing.
This view reflects a prevailing assumption about judging, namely that a judge’s political beliefs are (or should be) irrelevant to how she decides cases. But surely we accept that some judges may be "tough on crime," while others are more lenient on criminal defendants; some judges think we go too far to protect the environment, others believe we don’t do enough; some judges tend to be hostile to insurance companies, while others think the tort system is running amok; and so on. If these ideological differences exist, isn’t it better that voter in judicial elections have adequate information about candidates’ underlying political views? We can still insist that judges do the best they can to put politics aside, but it seems like a strange kind of regulation by proxy to forbid judges to talk about beliefs they have. Pretending judges are apolitical doesn’t make it so.