Too much partisanship in Ky Supreme Court race could ‘erode’ judicial independence

We are a private, nonprofit, nonpartisan organization created 16 years ago to safeguard the integrity of the judiciary in Kentucky judicial elections – 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. Now we are concerned that Kentucky judicial elections are becoming too partisan.

Judicial candidates who emphasize their partisan affiliation may lead voters to think of judicial elections as partisan, when they are not. This trend may undermine the independence and thus the integrity of the judiciary.

Our state Constitution calls for non-partisan judicial 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. But Kentucky and most other states that elect judges try to create safeguards, such as our state Supreme Court rule that 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.”

The Court also 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.”

The touchstone of the judiciary is its independence and impartiality. Everyone in a free society should be able to expect that disputes in court will 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 that the candidate is inclined to agree with the voter on a particular issue. But 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.”

On a July 28 post by the Fischer campaign, there is a comment that misleading if not inaccurate. We believe candidates are responsible not only for their social-media posts, but for comments that remain on those posts.

Judicial candidates have the First Amendment right to publicize their political affiliations and their records in public service, but most members of our committee think Fischer places too much emphasis on his partisan affiliation.

While he has every right to do that, we believe campaigning as a partisan 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.

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.

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.

Background information about the Kentucky Judicial Campaign Conduct Committee is at kyjccc.blogspot.com.