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Free-speech ruling right call, but could take toll in judges' races
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Voting for a judicial candidate is like scanning the menu in an exotic restaurant. You may recognize the names, but you have no idea what the ingredients are.

In 39 states, voters cast ballots to elect or retain judges. In most of those states, candidates for judgeships are barred from discussing political or social issues while campaigning. As a result, most judicial candidates simply assure us of their honesty and integrity, leaving voters to guess about political or philosophical leanings. For the public, the easiest thing is just to re-elect the incumbent.

In a tight 5-4 vote two weeks ago, the U.S. Supreme Court changed all of that. In striking down a Minnesota law, the Court gave judicial candidates a voice — for better or worse.

Minnesota law prevented judicial candidates from sharing their views on “disputed legal or political issues.” This kept judicial candidates above the political fray, making their personal opinions off-limits. In theory, such silence bolsters the public’s confidence in the judiciary as an impartial trier of facts.

The Supreme Court said that Minnesota can’t have it both ways. You cannot establish a system of electing judges and then pretend that they’re not politicians. The court concluded that the First Amendment gives candidates for all offices a constitutional right to share their views.

The Court’s reasoning is sound. In a country in which freedom of speech applies to everything from video games to nude dancing, there certainly should be protection for the comments of those running for public office.

Yet this decision will yield some mixed results. Yes, judicial candidates will be freer to talk about issues as they pursue office. Yes, voters will have a better sense of the candidates. And yes, all of the excesses of current campaigns — including vitriolic ads, pandering to special interests and increased dependence on contributions — can now infect judicial races.

Of course, there are still some restrictions on what judicial candidates may say, even in Minnesota. The law prevents those pursuing judgeships from promising an outcome in specific controversies. But isn’t a campaign statement to the effect of “I’m a strong opponent (or supporter) of gun control” really an implied promise to reach decisions consistent with that belief?

Many applauded the Supreme Court’s decision, including an opinion-page writer for the Wisconsin Journal who observed, “Voters may finally get to hear something of substance from the men and women who want to wear black robes and pass judgment on the rest of us.”

It’s an understandable sentiment. There’s a natural desire to know more about the people to whom we’re entrusting power.

Yet what is it that we really want to know about potential state court judges? I’m not sure I want to know where our judicial candidates stand on a wide range of issues or what his or her biases are. I want to cast my ballot for someone who can set aside those biases and uphold justice. No 30-second commercial can tell me that.

The Supreme Court’s decision does a service by reminding us just how deeply flawed the process of electing state judges is. If we cast our ballots without hearing from candidates, the process is a sham. On the other hand, state judges’ races decided through traditional political warfare will inevitably undermine the appearance of impartiality that is so critical to the bench.

States have long recognized the hazards of allowing judicial candidates to appeal to voters by commenting on controversial issues. They sought to minimize the harm by short-circuiting freedom of speech and essentially reducing judicial elections to name-recognition contests. Now that the Supreme Court has stepped in, states will want to consider their options, including the possibility of appointing judges.

At this nation’s birth, the Founders recognized the value of appointing federal judges. Over time, this “merit system” has served us well. While some quarrel with specific decisions of the Supreme Court and federal courts, overall most jurists are in fact held in high regard. These are professional arbiters of the law, many of whom have surprised their supporters by setting aside lifelong political positions in order to serve the interest of justice.

While there’s always an impulse in a democracy to give the public as much of a voice as possible, there’s a real risk that judges facing re-election will tailor or temper their judicial opinions in order not to offend the public.

In voting with the majority and asserting the free-speech rights of judicial candidates, Justice Sandra Day O’Connor went on to express concern, noting that elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”

O’Connor, the only justice on the Court ever elected to a judicial post, is right on target.

After all, the traits we need most in a judge, including independence and the willingness to make tough decisions, don’t pave a path to popularity.

Elections are won with majority support, but we have to be able to count on judges to enforce constitutional provisions that protect the minority. In the wake of this Supreme Court decision, the states have added incentive to explore the merit system.


High court nixes limits on judicial candidates' speech

Justices say Minnesota's rules, while well-intended, impose an unconstitutional gag order. 06.27.02

GOP challenges law barring open support of state judicial candidates
'We believe if we are going to elect judges then we should be able to endorse, support and contribute to candidates,' says Mississippi Republican Party chairman. 10.11.02

8th Circuit strikes down Minnesota's judicial-campaign rules
Full court finds regulations barring candidates from associating with political parties, personally soliciting campaign donations violate free speech. 08.03.05

High court ruling may take luster off judiciary
Decision may signal turning point — the beginning of era in which judges are less special, more exposed to the popularizing glare of the First Amendment. 07.01.02

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