The Ninth Circuit yesterday issued a decision on judicial campaign finance, Wolfson v. Concannon, controlled by and very much in the spirit of Williams-Yulee. Arizona may prohibit a judicial candidate from directly soliciting campaign contributions, and also from endorsing nonjudicial candidates and participating in their campaigns.  The Court found the State to have a compelling interest sufficient to cover all the prohibitions: “an interest in preserving public confidence in the integrity of the state’s sitting judges.”  After that, it was smooth sledding, courtesy of Williams-Yulee, and the Court batted away the plaintiff’s claims that the bans were both under-and over-inclusive, and that Arizona could have employed less restrictive means of satisfying its interest.

A concurrence by Judge Berzon adds a note of genuine interest to an otherwise predictable, workmanlike analysis.  She suggests that the prohibition on endorsements of and campaigning for other candidates was more correctly considered in relation to another interest, equally compelling, in the independence of the judiciary.  Williams-Yulee may well control the outcome on the question of personal fundraising, but “the bans on endorsements and campaigning for nonjudicial candidates and causes… are quite different.”  Supporting those bans is an interest in

society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decision-making process informed by legal, not political or broad, nonlegal policy considerations.

Berzon writes that prohibiting alliances between judicial and other candidates protects against “politicization” of the judiciary.  Her concern is not the risk of bias in particular decisions but instead preserving a “structurally independent judiciary. “

It has seemed to some (e.g. from time to time, me) that this was the sturdiest ground on which to plant the constitutional authority to regulate judicial elections more strictly than others.  Williams-Yulee was widely and applauded for the strange claim that judges who campaign for their offices are not politicians and that, as the Ninth Circuit in Wolfson puts the point, the judiciary’s “credibility” is threatened by ordinary-course political campaign activity.  But of course, when they stand for office and appeal for votes, judicial candidates are politicians.  Williams-Yulee awkwardly split the difference, barring direct solicitations while permitting the candidates to form and control fundraising committees that ask for the money, and allowing those candidates to acknowledge and thank contributors after-the-fact.  How this work-around—call it a “loophole”– would protect judicial “credibility” is not easy to see.

On the question of judicial candidates endorsing or campaigning with other nonjudicial candidates, Judge Berzon’s takes the problem to be one independent branch becoming beholden to or politically entangled with others, not corrupt relationships between the individual judge and supporters.  The worry is about a judiciary weakened in performing its critical “checking” function.  Berzon writes that when judges swap endorsements with legislative or executive candidates, or make speeches during nonjudicial political campaigns,” they build political alliances with allies and earn the enmities who don’t attract their support.

To take this theory seriously does not require subscribing to the fiction that judicial candidates are not politicians.  It better captures the reasons why they cannot be politicians in alliance with others who seek offices in the other branches.

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