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GODREAU ARIADNA 2/22/2012 For Educational Use Only THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO..., 104 Colum. L. Rev. 1072 104 Colum. L. Rev. 1072 Columbia Law Review May, 2004 Notes THE CONSTITUTIONALITY OF THE 2003 REVISIONS TO CANON 3(E) OF THE MODEL CODE OF JUDICIAL CONDUCT Matthew J. Medina Copyright (c) 2004 Directors of The Columbia Law Review Association, Inc.; Matthew J. Medina In response to the United States Supreme Court’s decision in Republican Party of Minnesota v. White, the American Bar Association (ABA) revised provision s of its Model Code of Judicial Conduct that restrict the campaign speech of candidates for judicial office. Concurrently, the ABA took the additional step of revising its rule requiring disqualification of a judge whose impartiality might reasonably be questioned to include situations where, as a candidate, a judge has made statement s com mit tin g or appea rin g to commit her with re spe ct to an is sue or con tro ver sy in a case. This Note examine s the constitutionality of the ABA’s revised disqualification rule in light of White, concluding that the rule is unlikely to survive strict scrutiny. The Note then examines a similar provision in the Texas Code of Judicial Conduct, concluding that it is a constitution ally acceptable substitute for the ABA’s revised rule. Introduction In August of 2002, the Texas Supreme Court issued an order amending certain provisions of the Texas Code of Judicial Conduct regulating the campaign conduct of Texas’s elected judiciary. 1 The court struck a provision that had prohibited a judicial candidate from making statemen ts indicating her opinion on any issue that might come before the court to which election was sought, and narrowed a broad provision prohibitin g a judicial candidate from making pledges or promises during a campaign. In addition to these changes to the Code’s substantiv e rules, the court also promulgated interpretive comment ary providing that a “statement made durin g a campaign for judicial office . . . may cause a judge’s impartia lity to be reasonably ques tion ed in the cont ext of a par ticul ar case and may result in recu sal. ”2 The changes, recommended to the court by an advisory committee composed of law professors and practicing attorneys, were, by the court’s own admission, hurriedly adopted in order to take effect prior to the November 2002 general election. 3 At its annual meeting just under a year later, the American Bar Association (ABA) adopted amendments to its Model Code of Judicial Conduct, which for the first time in a century mandated, in certain instances, *1073 the disqualific ation4 of an elected judge based on her campaign statements. The ABA’s new rule requires disqualification of a judge who “has made a public statement that commi ts, or appe ars to commit, the judge wi th res pec t to (i ) an iss ue in the pro cee din g[, ] or (i i) the controversy in the proceeding.”5 The standing committee that proposed the amendments noted that while the Model Code already contained broad rules relating to disqualification, “it was important to include a provision . . . that related directly to judicial campaign speech” and that was “designed to make the disqualification ramifications of prohibited speech violation s explicit.” 6 In addition to the action taken by the ABA and the Texas Supreme Court, a number of other states also took steps to al ert potentia l jud icial can did ate s that the ir campai gn sta tem ents ma y, in some insta nc es, re sul t in re cus al or disqualification. 7 What, then, spurred this sudden and simultaneous interest in an area of judicial administration that, while unquestionabl y important , generally garners little public attention? The answer can be found in the United States Supreme Court’s decision in Republican Party of Minnesota v. White, issued two months prior to the amendments to the Texas Code. 8 In White, the Court declared a provision of Minnesota’s Code of Judicial Conduct that forbade a judicial candidate from “announcing [his or her] views on disputed legal and political issues” © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1
