68 Alb. L. Rev. 651 (2004-2005)
Regulating Judges' Political Activity after White

handle is hein.journals/albany68 and id is 673 raw text is: REGULATING JUDGES' POLITICAL ACTIVITY AFTER
Wendy R. Weiser*
In Republican Party of Minnesota v. White,' the Supreme Court
struck down, on First Amendment grounds, a canon of Minnesota's
Code of Judicial Conduct prohibiting candidates for judicial office
from announcing their views on disputed issues. In doing so, it
called into question the constitutionality of many of the rules that
govern campaigns for judicial office in the thirty-nine states that
elect at least some of their judges. These rules, modeled after
Canon 5 of the American Bar Association's (ABA) Model Code of
Judicial Conduct,2 and adopted in some form in virtually every
state, have long served as one of the primary means by which states
seek to ensure the distinct characters and constitutional roles of
their judicial branches.
Since White, state regulatory systems designed to promote the
independence and impartiality of their judiciaries have been thrown
into  disarray.    By   articulating  a  robust conception    of First
Amendment protections in the context of judicial elections, the
White decision has left the canons-many of which touch on matters
within the scope of the First Amendment-susceptible to attack.
For example, canons prohibiting judges and judicial candidates from
* Associate Counsel, Brennan Center for Justice at NYU School of Law. This article was
prepared as part of the Brennan Center's Fair Courts Project.
536 U.S. 765, 788 (2002).
2 ABA MODEL CODE OF JUDICIAL CONDUCT Canon 5 (1990) (hereinafter MODEL CODE). The
Model Code has existed in some form since 1924, when the ABA first formulated the Canons
of Judicial Ethics (1924). The 1924 Canons were later replaced with the Code of Judicial
Conduct (1972), which, in turn, was replaced with the 1990 Model Code. In September 2003,
the ABA announced the creation of a Joint Commission to Evaluate the Model Code of
Judicial Conduct, which is in the process of developing recommendations for revisions to the
Model Code. See ABA Joint Comm. to Evaluate the Model Code of Judicial Conduct, at
http://www.abanet.org/judicialethics/about.html. The provisions of Canon 5 were in Canon 7
of the 1972 Code. See MODEL CODE Correlation Tables.

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