There’s something about the judiciary that demands a special reverence from our politics.
Jurists may have doffed their English wigs when the 18th century Founders launched the system, but remain garbed in those almost clerical robes. And when they wield that gavel from high atop the bench, there is no question of their authority.
We even address them as “Your Honor,” a far more respectful title than our other elected officials receive.
Old-timers, meanwhile, recall judges like the late State Supreme Court Justice Frederick M. Marshall, who chastised lawyers failing to demonstrate proper deference, or who showed up without the business suit uniform. Not an ego thing; a respect for the court thing.
That’s why it remains fascinating to watch our system of judicial elections evolve – or some would say devolve.
Take the just-concluded primary election for Erie County Family Court judge. In the Democratic primary, endorsed candidate Kelly Brinkworth emerged victorious in a nasty faceoff with another Democrat – Michele Brown. Oh sure, they and two other candidates emphasized their experience, credentials, Bar Association ratings and all the other trappings of a respectable contest for the bench.
But while the candidates themselves observed all the requirements of judicial decorum, not everyone else did. Ugly television and mail marked a race that mirrored all those other elections, because outside groups jumped in.
To them, the canons of judicial ethics that prohibit personal attacks didn’t mean a thing.
On the weekend before the primary, The Buffalo News reported that Erie County Democratic Chairman Jeremy Zellner – who backs Brinkworth – demanded Brown remove from the airwaves an ad accusing Brinkworth of making “negative and untrue statements” in a mailing. While ethical codes prohibit judicial candidates from making such statements, Zellner emphasized the Erie County Democratic Committee sent the mailer and that Brinkworth and her campaign had no involvement.
The Brown ad said: “State rules prohibit judicial candidates from running a negative campaign, but Kelly Brinkworth broke those rules, violating the judicial code of ethics with false attacks. If we can’t trust Kelly Brinkworth to follow the rules before she’s a judge, how could we ever trust Kelly Brinkworth if she became a judge?”
The Brown campaign correctly noted it is entitled to respond in such stones to defend itself against direct attacks not normally allowed, though it directed its ire against Brinkworth rather than Democratic Headquarters, which sent the mailers.
And that’s the difficulty here. While the candidates themselves started out observing the rules of judicial campaign ethics, other entities like the county Democratic Committee did whatever they wanted – just like the super PACs of national politics.
“I am not bound by any guidelines,” Zellner also correctly explained. “It’s important for someone to point out these things in campaigns if there are serious accusations. We as an organization need to protect our line and make sure the public knows the facts about a campaign.”
None of this goes unnoticed at the Erie County Bar Association, one of the last bastions of concern over the way we elect our judges.
“It should be a matter of concern for any person who votes for any elected office; more concern for a judicial race,” said Shari Jo Reich, chairwoman of the Bar Association’s Judiciary Committee. “All of a sudden Kelly Brinkworth and Michele Brown are involved in these races they have no control over.”
Reich cannot recall other races in which outside groups wielded such influence. Zellner says it has been going on for years, and points to the same free speech right so often cited by the super PACs.
Everyone stakes a claim to the truth in all this.
But what was originally sought by those seeking to separate judicial campaigns from the mud has somehow been lost in the mud.