Pennsylvania has an elected judiciary. This year, my local county will elect attorneys to fill two judicial vacancies. Several counties across the state will also be filling more than one vacancy.
Bar associations across the state will give recommendations and endorsements of various candidates, then publish those for the general public. But what about the individual lawyer? Should we help run these campaigns? Donate money? Attempt to educate the public about our peers?
A Responsibility to the Public?
Many judicial elections are for trial courts. With these smaller jurisdictions, it is more likely that local attorneys have worked with the candidates on some occasion. That gives local attorneys a sense of the candidates. They may have knowledge of her work ethic, her professionalism, and her general reputation as an attorney. Do attorneys have a responsibility to inform the public of these things?
I think so.
But our duty cannot be to gossip. It isn’t our job to bad mouth another member of the bar. But it’s easy to do that. And it’s easy to rationalize gossip when you tell yourself that you’re just informing the public about a candidate’s work ethic. We have to do better than that. We can do better than that. But how?
Host a debate. Or have each of the candidates come to your office for a brief interview and publish it on your law firm’s blog. Write an op-ed in the local paper to raise awareness of the issues at stake in the election. Or get involved in your local bar association. Your local bar association can make a recommendation about the candidates. But that’s no easy task. The bar association needs help sending out questionnaires or holding a vote. Then they need help publicizing the recommendation to the public. After all, the whole thing is pointless if everyone just votes for the name they recognize.
Picking a Side
I don’t want to be misunderstood. Educating the public does not have to be a neutral experience. Picking a side can be a good thing. In fact, sometimes it’s better that way. Working for a campaign can be a lot more fun than just trying to make sure the public is informed about the candidates. And by working for one candidate, lawyers are still helping to educate the public.
The Risk of Involvement
Although we like to believe otherwise, judges are just people.They have inherent biases and flaws. Some, like a judge who has forbidden multiple attorneys from practicing in his courtroom, are less subtle about it than others. But no matter how subtle, every single judge has an opinion about every attorney. It’s an inevitable flaw of the human character.
By getting involved in a judicial election, and picking a specific candidate, lawyers are rolling the proverbial dice. If the candidate you back loses, that means someone else (obviously) won. If you practice in front of the judge you didn’t support, will there always be a bias? Deep down, will the judge always remember that you tried to keep her off the bench? That’s the risk with getting involved in a judicial election. We know judges should not outright hold these things against us, but does anyone really think they can prevent a bias from forming nonetheless?
The Level of Involvement
Sure there are risks, but that doesn’t mean you shouldn’t get involved. You don’t have to become the campaign chair to help out. You can do something small and anonymous like put up lawn signs. You can knock on doors, hand out leaflets, or make phone calls. If you’re tech-savvy you can spend a weekend setting up a website for a candidate that you believe in. Or you can do something easy but less anonymous like make a donation. Nothing says politics like throwing money at something, right?
The Risk of a Conflict
The most dangerous part of getting involved in a judicial election is the risk of a conflict. If a lawyer works for a candidate or makes a donation, the judge may be forced to recuse himself from any case with that lawyer. Thus, by helping someone she believes to be qualified get on the bench, a lawyer may not get to practice in front of that judge. Of course in practice that isn’t always the case. I know plenty of lawyers who practice in front of judges after raising money or campaigning for the judge.
But a lawyer’s involvement with a campaign can also erode public confidence in the proceedings. According to a new paper on judicial integrity, direct campaign contributions undermine the public’s confidence in the judiciary.
I believe in the importance of getting involved in the electoral process however one can. Moreover, I think lawyers have a greater duty than the general public when it comes to judicial elections. But lawyers have to be careful about creating a poor relationship with a judge, or contributing to the public’s waning opinion of the judiciary.