Judicial Politics: How to Elect Those Who Want to Judge You

In This Corner…

2020 brings forth yet another Presidential election, one that some deem as the most important of all time. At the top of the card, current heavyweight champion Donald Trump prepares himself for the challenge of the number one contender, Joe Biden. Kanye West is somewhere in there acting weird, but we don’t talk about him. Elsewhere, voters will be treated to a mid-card attraction as long-reigning middleweight champ, Mitch McConnell, laces up the gloves once more as he prepares for a showdown with scrappy underdog, Amy McGrath. But, much further down the card, are the often-ignored judicial elections. While these local bouts may not be as exciting as the main event, judicial elections are crucial in making sure justice for sexual assault victims is indeed served.

Judge Who?

In preparing the research for this essay, I did an unscientific poll on social media regarding voting and judges. I asked the question: “During elections, if you do not vote for judges, why?” One commentator stated that the only reason he chose not to vote is because he has “no knowledge of who is running.” Another commentator would further this thought, pointing out that “judges don’t seem to get the same press time as other positions.” Other commenters’ answers would include “no knowledge of the candidates,” “not having the information to make an informed choice” and “not feeling qualified to have an opinion.” The answers may be worded different, but the general thought is the same: of the people who answered, 88% of people feel they do not know enough about judicial candidates to vote for them.

Lack of knowledge about the candidates on the ballot is a widespread issue when understanding why voters may skip the judicial contests on their ballots. While voters enter the booth with a multitude of cultivated information on their options for President, governor, and members of congress, many lack meaningful information on judicial candidates. As a result, approximately 25% of voters who go to the polls do not cast votes in judicial contests. UNLV Political Science professor Rebecca Gill concisely describes the issue voters face on the judicial ballot. She states:

“It is a really difficult problem, especially for the average voter who opens this ballot and sees dozens and dozens of names with no indication of political party, of who the incumbent is. There is just very precious little information on this ballot.”

The Campaign Trail

The rules that judicial candidates must abide have caused this lack of information for voters. Rule 4.1 of the Rules of Professional Responsibility limits the campaign activities of judges and judicial candidates. Per the rule, candidates are unable to make speeches on behalf of political organizations, publicly endorse or oppose other candidates for public office, or publicly identify themselves as a candidate of a political organization. I had the opportunity to speak with local Circuit Judge Brian C. Edwards who confirmed the limitations that the rules place on candidates. “The rules are very clear about what we are allowed to do,” Judges Edwards said. “As such, you will not see candidates taking a Democratic or Republican stance,” he continued. And for voters that seek party designation as a guide to voting, these limitations make it difficult to select judicial candidates, especially in states like Kentucky, that hold non-partisan elections.

Rule 2.2 also contributes to voters being left in the dark on judicial candidates’ political positions. This Rule calls for judges to perform the duties of their judicial office fairly and impartially. While fair and impartial treatment is something typically expected from a judge, the rule prevents judicial candidates from taking hard stances on topics and from making campaign promises. “Due to the rules, judicial candidates are basically forbidden from speaking on issues that may come before them in court,” Judge Edwards said. Not being able to speak on topics makes judicial campaigns unique when compared to other elected official campaigns. Judge Edwards describes the judicial campaign process, saying “for judges, we run on our judicial experience, or if you are running for your first judgeship, your practice experience.” He continues saying, “a good candidate will be able to show that he or she can be fair and just to both sides of the case and also treat those who come in the courtroom with respect.”

While fairness and temperament are all important qualities for candidates, voters still yearn to know candidate standpoints. If judicial candidates are unable to make definitive statements about their stances on issues, voters are forced to examine their past judicial rulings and conduct to grasp where judges stand on the issues we find important. While it may require a level of independent research that the typical voter is unwilling to make, the rulings and statements that judges make on sexual assault cases can be found in internet media archives.

Judges and Survivor Justice

When dealing justice to survivors of sexual assault, judges play the most crucial role. Prosecutors can argue diligently, and juries can agree through deliberation. However, without a judge willing to take sexual misconduct seriously, true justice falls short. I have previously spoken at length about cases where attractive female defendants are given light sentences for sexual misconduct. But there are many other examples of how some judges continue to erode the sexual assault survivor’s faith in the system.

Some judges, like California’s Derek Johnson, decide to give unsolicited and unqualified medical advice to survivors in their courtroom. Despite acknowledging his lack of gynecological expertise, in a 2008 hearing Johnson would address a woman who had been sexually assaulted by her ex-boyfriend, saying:

“If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight.”

This statement led to Johnson being reprimanded by the California Commission on Judicial performance.

In addition to inaccurate medical science, others like former Superior Court Judge John Russo Jr., moonlight as self-defense experts when addressing survivors. In 2016, Russo told a woman in his court room who was seeking a restraining order against a man who sexually assaulted her, the way to keep someone from sexually assaulting her was to “keep her legs closed.” It would seem that Sensei Russo’s tips were not well received as this incident, amongst others, would lead to his removal from the bench.

While Russo and Johnson would be reprimanded for their remarks, this is not always the case. In 2014, Indianapolis’ David Wise was found guilty of one felony count of rape and five felony counts of deviate conduct. Wise had been caught drugging his wife and then having sex with her as she was unconscious, a practice he continued for around three years. While the charges Wise was found guilty of would normally carry 20 years each, Marion County Superior Court Judge Kurt Eisgruber would sentence him to only eight years of home detention. As if this sentence weren’t outrageous enough, Judge Eisbruber would also order Wise’s ex-wife/victim to forgive Wise, as a way to “help her heal.” Eisgruber would retain his judgeship in the 2014 election due to running unopposed. He is next up for re-election in 2020 and has already received a recommendation for retention from the Marion County Judicial Selection Committee.

There already exists a widespread thought that the legal system often “exacerbates and diminishes the harm survivors have already experienced.” And it is judges like Utah’s Thomas Low, who praised convicted rapist Keith Robert Vallejo as an “extraordinarily good man,” Arizona’s Jacqueline Hatch, who told a sexual abuse survivor that her assault was a “lesson in friendship,” or the ones listed above, that continue to chip away at the faith survivors have in the judicial system. They are also prime examples of why judicial voting is important.

Do Your Homework

Although voters are unable to get political information directly from judicial candidates, there are still avenues one can take to be knowledgeable in the voting booth. First, voters must familiarize themselves with the election rules of their state. While the majority of respondents to my research question highlighted a lack of information about candidates, some demonstrated a lack of knowledge on the voting process altogether. A handful of people stated that while they may not know much about the judicial candidates, they “vote straight democrat, so that will cover the judges who best align with their beliefs.” The problem is, judicial elections are non-partisan in Kentucky. Of the six states that permit straight ticket voting, only half of them allow for partisan judicial elections. This means if you are voting straight ticket in Kentucky, Oklahoma or Michigan, your vote will not cover any of the judicial candidates. State by state voting guidance can be found online.

When it comes to educating yourself on judicial candidates themselves, Judge Edwards recommends looking to groups that align with your beliefs for guidance. “If there is an organization you follow like a labor or teachers union, check who they endorse in these races,” Edwards says. “For Louisville elections, the organization, ‘Citizens for Better Judges’ is also a great resource,” continues Edwards. “They are dedicated to informing the public of the judicial elections and offer a list of endorsements based on a detailed process”, he says.

Perhaps one the best resources for information are the people that spend the most time with judges: the attorneys. Louisville family law attorney Courtney Kellner states “attorneys can help voters know a judge’s day to day vibe as opposed to their campaign vibe.” Each year, Courtney produces a campaign guide for her friends which helps advise them on their judicial picks. “I’ve been putting the guide together for about nine years now,” Courtney says. She makes sure each edition of her voter’s guide includes information about the candidate’s judicial experience as well as her personal experience with them in court. The result is a clear and concise view on why she may or may not be voting for a specific candidate. According to Courtney, providing friends with information (be it written or spoken) on judicial candidates is a common practice. “Every attorney does this because everyone is always asking” she says.

Whatever method you choose to educate yourself, be sure not to skip the judicial portion of your ballot this year. While the Presidential and Congressional elections may be more exciting and argued about on your Facebook feed, you are far more likely to find yourself before the bench than you are in the Oval Office.

I Taught the Law

Stories of the law, legal academia, and lawyer culture.

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

James J. Wilkerson, J.D.

Written by

James is the Director of Equity, Diversity and Title IX at Indiana University Southeast. He is a columnist at the I Taught the Law legal journal on Medium.

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

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