High court skeptical of restrictions on judicial candidates' speech
By Tony Mauro
Special to freedomforum.org
The Supreme Court appeared to be sending a message to the states yesterday: If you choose to elect your judges, you have to let judicial candidates behave more or less like politicians running for other offices.
During oral arguments in a key First Amendment case, most of the justices seemed troubled by a Minnesota rule that restricts what state judicial candidates can say during election campaigns about issues that may come before them while on the bench.
"Maybe you shouldn't have judicial elections," said Justice Antonin Scalia at one point. "It may be a very bad idea. But as long as you have it, I don't see the interest in keeping the electorate from being informed."
The court seemed to view the rule alternately as too vague, unclear, restrictive or irrational to withstand challenge under the First Amendment. But some justices still seemed interested in fashioning a ruling that would restrict a narrower category of speech of the type that would prejudice the candidate's handling of specific cases if elected.
A ruling in Republican Party of Minnesota v. Kelly could alter the way campaigns are conducted in the 39 states that elect at least some of their judges. At issue is Minnesota's rule similar to canons in almost all of the judicial-election states barring candidates from announcing their views on "disputed legal or political issues."
If the court strikes down the canon, reformers fear, judicial candidates will be under ever more pressure to campaign and raise funds as if they were candidates for nonjudicial political offices. Already, the infusion of millions of dollars from interest groups into judicial elections is causing alarm among the American Bar Association and other groups that advocate an independent judiciary.
"There are 33 states with high court elections this fall, and there will be a donnybrook if the Minnesota canon is simply struck down," said Georgetown University Law Center professor Roy Schotland, a leading supporter of the rule. Schotland said the tenor of the oral arguments did not bode well for his side.
The aim of restrictions such as Minnesota's is to promote judicial impartiality and independence and to guarantee due process for litigants. But those goals were scarcely mentioned yesterday as the high court focused on the First Amendment issues raised in the case, brought by failed Minnesota Supreme Court candidate Gregory Wersal.
The First Amendment has its "most urgent application" in the context of political campaigns, said Wersal's lawyer, James Bopp Jr. But in Minnesota, Bopp said, "the people are denied access to the information they need to make informed choices." (Bopp is also part of the legal team that will challenge, on First Amendment grounds, the campaign-finance measure passed by Congress and signed into law today by President Bush.)
Scalia described himself as "absolutely befuddled" at how Minnesota could choose to elect its judges but then impose rules that prevent the electorate from learning the candidates' views. "It seems to be a total contradiction," he said.
Minnesota Solicitor General Alan Gilbert, struggling to defend the rule, said candidates are permitted to comment on general principles and on past rulings, but simply cannot commit to how they would vote in future cases.
Justice Anthony Kennedy ridiculed that line-drawing, suggesting it was silly for Minnesota to permit a candidate to say a past ruling was "the worst thing since Dred Scott," but then bar the candidate from saying he would try to reverse it in the future. "It's just a game, just a dance," Scalia chimed in.
Kennedy also said the state of Minnesota apparently did not trust its voters to evaluate campaign statements and, if they contained inappropriate promises, to vote against the candidates who made them.
Justice John Paul Stevens stumped Gilbert with a hypothetical in which a candidate criticizes a past ruling and also criticizes stare decisis respect for precedent leaving the clear implication that the candidate would reverse the ruling if elected. Gilbert at first said that would be permissible in Minnesota, then said it would not, and then that it would.
Justice Sandra Day O'Connor attacked the rule from another angle, suggesting its real aim was to protect incumbents. Incumbent judges, she said, get to state their views every day through their rulings, yet "candidates are restricted from expressing the very same thing." O'Connor was echoing one of the chief criticisms of the canon made by Wersal.
Bopp was also hit hard with questions about the true meaning of the canon. The 8th U.S. Circuit Court of Appeals, in upholding the canon last year, interpreted it narrowly to bar discussion only of issues likely to come before the candidate if elected. The Minnesota Supreme Court in January adopted that narrow interpretation, but Bopp said it was still unconstitutional even though he also said it is constitutional for states to prevent judicial candidates from actually promising how they will vote in future cases.
"It's an extremely fine line you are arguing for," said Chief Justice William Rehnquist.
To some in the audience, the oral argument underscored the cultural divide between appointed federal judges and elected state court judges. Scalia's statement, and others, indicated disdain for judicial elections, but reflected a view that if states choose that route, they have to live with unrestricted campaign rhetoric. O'Connor is the only one of the nine justices who has stood for election for a judgeship, running in a contested race for the bench in Maricopa County, Arizona, in 1974.
"I don't think this bench has a very good conception of what it means to run for a judgeship," said Deborah Goldberg of the Brennan Center for Justice, which supports the Minnesota rule. "I hope they will think long and hard about what pressures judicial candidates will be under" if the restriction on candidate speech is struck down.
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