Non partisan judges

Whisper campaigns. Non partisan judicial races are becoming partisan. 

The notion of non-partisan civic mindedness and equal justice is supposed to be a virtue by itself.  But maybe now, not so much. Winning is the highest virtue.

Republican Party booth. Note the Parker sign.

We elect judges in Oregon, and they are a nonpartisan office. Increasingly people running for judge are letting it be known to local party people that they belong to a partisan tribe. 

Candidates are subtle and quiet about it. Judge candidates don't put the words "Republican" or "Democrat" on their lawn signs or brochures. That would be illegal and against judicial ethics. 

But they signal their partisan orientation. It is a wink-wink thing. It is totally legal. 

A judge candidate doesn't publicly say he is Republican or Democrat.  The word gets out more subtly by who endorses them, by what signs are next to theirs in lawns, whether they reveal they go to an evangelical church. Let others do the talking. Then it goes to the next step and the local political activists and parties take over.  Democratic or Republican Party people get the message and choose on their own to carry literature for a judicial candidate, put their signs up in booths, or mention them as part of a partisan slate of candidates.

The judge candidate didn't do anything illegal. It was the political parties, doing what they do, promoting people who see things their way. They spread the overt partisan message.

I consider whisper partisanship to be bad for the authority and dignity of the courts. We expect partisan legislators to  have points of view they advance, but we expect something entirely different from judges. We expect judges to be fair. We expect equal justice. 

Maybe I am naive.

Election realities push toward whisper campaigns and partisanship. It is Gresham's law in politics. Bad behavior drives out good. Partisan whisper campaigns are a winning strategy.

In judge races, candidates are expected to run on the basis of non-partisan qualities of reputation, character, polls by fellow members of the local bar. It is a popularity contest based, supposedly, on their judgement and ability to be fair and reasonable. Since the criteria are so vague and amorphous the votes tend to divide roughly evenly among two candidates with approximately equal campaigns. But if one or the other of two candidates gets whispers going among Democrats or Republicans that "Candidate John Doe is really one of us," then that person gets an extra boost from voters who previously had no particular compelling reason to vote one way or the other. 

The ideal strategy to win is for ones opponent to "play fair" and avoid partisanship on behalf of the intended rules and the impartiality of the judicial system, while you give high minded non-partisanship lip service, while simultaneously doing a whisper campaign. The whisper campaigner wins.

It isn't really cheating because it is a a mere whisper. Wink-wink. It's legal. And besides, the candidate's friends did the actual work. The judge candidate has clean hands. It is a legal fiction but that is the nature of legal fictions. They are legal.

Legal fiction

If whisper campaigns are accepted in a community, then the stable equilibrium is for both candidates to do it. It is an arms race, in which a secret-Democrat runs against a secret-Republican, both sneaking. But the result is that people in the know realize the judges only pretend to civic-minded, equal-justice non-partisanship. They are really mere sneaky politicians, in robes.

If a community tolerates that, then that is what we will get. 

But there is a possible alternative, although it will not succeed unless there are people and institutions in a community that have moral authority to be spokespeople for the non-partisan authority of the justice system and its commitment to equal justice. This would require people who are committed to that virtue to condemn, publicly and clearly, the whisper campaign of a candidate if one is taking place. If credible, respected people and institutions immediately condemned partisanship gaming in judicial races, then the repetitional cost of doing a whisper campaign could be greater than the value of signaling that one is really a Democrat or Republican, hiding under a judge's black robes.

Would that work?  Possibly.

It would require something which may no longer exist: people and institutions who cared deeply about the appearance of judicial fairness. Maybe a body of judges could do it. Maybe senior, respected lawyers could speak on behalf of justice rather than partisanship. Maybe newspaper editorials would care to advance that virtue.

Or maybe it is simply too late, and civic-minded nonpartisanship simply isn't that important a virtue anymore. People may not expect it, demand it, or believe it is possible. And besides, at this point no person or institution has credibility outside a little silo. Who cares what judges think, what the local Bar Association thinks, what the newspaper thinks?

These are new times. Things have fallen apart, the center cannot hold anything, and we have the anarchy of winning being a more important virtue than the appearance and reality of impartial justice