(The following is a statement by the KYJCCC on the campaign by Joe Fischer for a seat on the Kentucky Supreme Court.)
The Kentucky Judicial Campaign Conduct Committee, which has monitored campaigns in nonpartisan judicial elections for 16 years, is concerned that such elections are becoming too partisan.
The committee is a private, nonprofit, nonpartisan organization that was created to safeguard the integrity of the judiciary in Kentucky judicial elections. It was formed partly in response to court decisions that expanded the First Amendment freedoms of judicial candidates, and the prospect of campaigns that made nonpartisan judicial elections more like those for executive and legislative offices, which are partisan.
The committee has focused its public statements on campaigns that used false or misleading information to persuade voters, and believes its work has discouraged such campaigning. Now it feels that judicial candidates who emphasize their partisan affiliation are leading voters to think of judicial elections as partisan, when they are not, and that this trend will undermine the independence and thus the integrity of the judiciary.
Section 117 of the Kentucky Constitution provides for the popular election of all Kentucky's state judges in non-partisan elections. Does a nonpartisan election require nonpartisan campaigns? No. Federal courts have ruled that nonpartisan elections cannot deny judicial candidates, or others, the rights of free speech and association.
Kentucky and most other states that select judges by popular election attempt to create safeguards that protect the independence and integrity of their judiciaries. A rule of the Supreme Court of Kentucky says “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” In its official comments on the rule, the Court says, “The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office should be conducted differently from campaigns for other offices. . . . Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence.”
Why should judicial elections be considered different from other elections? The touchstone of the judiciary is its independence and impartiality. Everyone in a free society should be able to expect their disputes that end up in court to be decided by an impartial tribunal that is not influenced by political affiliations.
It is natural for voters to want judges whose expressed views or associations (political parties or special interest groups) indicate the candidate is inclined to agree with the voter on how a particular issue should be resolved. When judicial candidates emphasize their affiliation with a political party, they erode long-held American principles of judicial independence and fairness.
That is why we are concerned that the campaign logo on the website of state Rep. Joe Fischer for the Kentucky Supreme Court includes a bottom line identifying him as “the conservative Republican” in the race; that a June 29 post on his campaign Facebook page thanked the Oldham County Republican Party for its “generous support;” and that on July 21, the page shared a post by the Republican Party of Kentucky’s 4th District, quoting from a public-radio news story:
“Joe Fischer, a Republican legislator known for his anti-abortion and conservative stances, is taking on nine-year incumbent Supreme Court Justice Michelle Keller in the race. Fischer, of Fort Thomas, penned Kentucky’s ‘trigger law,’ which sought to automatically outlaw abortion in the state after the U.S. Supreme Court struck down Roe v. Wade. He also sponsored an amendment to the Kentucky constitution that would ensure no abortion rights are guaranteed in the state’s fundamental document. A former prosecutor and appellate judge, Keller was appointed to the northern Kentucky Supreme Court district in 2013 by Democratic Gov. Steve Beshear.” The story did not mention that Keller is registered to vote as an independent.
We believe candidates are responsible not only for their social-media posts, but for comments that remain on those posts. On a July 28 post by the Fischer campaign there is a comment by Bernard Kunkel: “Joe Fischer all the way. You must beat the pro-abort Andy Beshear loving Justice Michelle Keller.” Kunkel provides no evidence for this assertion, but in a similar post on another judicial campaign’s page, he cited a Court of Appeals decision that upheld an Anderson Family Court ruling for a parent who wanted his children vaccinated over the objections of the other parent, based on the use of aborted fetal cells. That is the subject of a complaint pending before the committee, which has advised the object of the complaint that it believes Kunkel’s characterization is misleading if not inaccurate.
Judicial candidates have the First Amendment right to publicize their political affiliations and their records in public service, and some on our committee believe that unless the campaigning is misleading or inaccurate, they should be able to exercise this right without questioning or criticism from the committee – and that voters deserve to have information about the candidates.
A majority of the committee believes the First Amendment right to free speech is not compromised by speech questioning how that right is exercised, and that in this case, Fischer places too much emphasis on his partisan affiliation.
While he has every right to do that, we believe campaigning as the Republican candidate in a nonpartisan election undermines the independence and integrity of the judiciary. Not only can this mislead voters into thinking they are voting in a partisan election, it strengthens Fischer’s ties to his party. The primary objective of any political party is to gain and maintain power by electing its candidates. The objective of a nonpartisan election is to separate the judiciary from such entanglements.
A broader look
Looking more broadly at judicial elections in general, we might do well to remember the example Abraham Lincoln set when considering whom to appoint chief justice after the death of Chief Justice Roger Taney in 1864. As biographer David Herbert Donald describes, "The President wanted to name a man deeply versed in the law, rather than an ideologue or a theorist," or as Lincoln put it, "The function of courts is to decide cases, not principles." (Lincoln, p. 551.)
An equally important consideration in judicial selection is that the great majority of work that a judge does is not the stuff of headlines. This is even more reason voters should rely less on the political affiliations and political views of the prospective judge. Deciding issues of probate, evidence, personal injury, procedure, family law, and many other areas of law rarely will be affected by whether the judge is a Republican or a Democrat.
Far more important than party affiliation in judicial selection are such considerations as knowledge of the law, life experience, fairness, the ability to listen, the willingness to put aside possible prejudice and bias, patience, humility, and a firm commitment to the rule of law.
We have no perfect way to select our judges. In Kentucky voters have the challenge and responsibility to uphold the highest standards of judicial selection. This responsibility is best served by informed and objective determinations. We must not be sidetracked; we must keep our eyes on the ball.