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High court ruling may take luster off judiciary

Analysis

By Tony Mauro
Special to freedomforum.org

07.01.02

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What will judicial elections be like now? More broadly, what will judging be like?

These are inevitable questions to ask in the wake of the Supreme Court’s ruling June 27 in Republican Party of Minnesota v. White. By a 5-4 vote, the Court struck down, on First Amendment grounds, a Minnesota canon of judicial conduct that prohibited judicial candidates from announcing their views during the campaign on “disputed legal or political issues.”

“We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election,” wrote Justice Antonin Scalia for the majority.

“The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the contents of candidate speech are simply beyond the power of government to impose,” added Justice Anthony Kennedy, sounding more and more like a First Amendment absolutist with each passing opinion.

In the face of the powerful arguments of the majority, the dissenters’ reply, in essence, was, “But judicial elections, and judges, are different.” The interests of fairness and impartiality that are so fundamental to the judiciary, they argued, demand different rules for judicial candidates.

“There is a critical difference between the work of the judge and the work of other public officials,” wrote Justice John Paul Stevens in dissent.

“Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote,” agreed Justice Ruth Bader Ginsburg.

The judiciary, including the Supreme Court, has long clung to the view that judges stand above and apart from the political rough-and-tumble that characterizes the other two branches of government. The fact that Ginsburg’s expression of these views landed her on the losing side suggests the ruling is something of a turning point — the beginning of an era in which judges are less special, and more exposed to the popularizing glare of the First Amendment.

Already, many believe that the Court’s ruling will make state judicial elections more raucous, costly and divisive, as candidates, interest groups and voters demand and expect greater candor and commitment from candidates.

But it is easy to see how the high court’s ruling could have ramifications beyond state judicial elections. If the leash on judicial speech is loosened at election time, could it also loosen the tongues of sitting judges as well? Federal Judge Thomas Penfield Jackson was scolded for making comments about the Microsoft litigation before him that were published after the trial was over. With the new paradigm of First Amendment vitality within the judicial branch, would he be criticized as heavily now?

Interestingly, Kennedy addresses this issue briefly, noting that his views on the Minnesota canon do not pass judgment on restrictions on the speech of sitting judges. But he said that question would be governed by the Supreme Court’s precedents in Pickering v. Board of Education and Connick v. Myers, the standard tests for when and whether speech by government employees can be restricted. The notion that the speech rights of sitting judges would be evaluated in the same terms as the speech of government clerks and functionaries underscores the reality that judges are not as special as they were a week ago.

Scalia also was careful to say that by striking down the Minnesota canon at issue, the Court was not ruling on a separate, more specific rule that bars judicial candidates from actually promising how they would rule in specific cases. “We neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.”

Ginsburg’s dissent casts doubts on Scalia’s soothing statement, arguing that without the canon that was struck down, the ban on judicial campaign promises is “easily circumvented.”

Some think the Minnesota ruling will have a blowback effect on the Supreme Court itself — or at least on its nomination process.

Indiana Chief Justice Randall Shepard, who has written extensively on judicial speech issues and supported the Minnesota canon, wondered aloud “what’s the impact of all this on the next Supreme Court nomination we have?”

In most of the nominations of the last century, it was common practice for nominees to resist the questions of senators about their views on specific issues from abortion to capital punishment.

“I think the next nominee will not find it as easy to avoid those questions,” said Shepard. Shepard even thinks that at an earlier stage, when a president is interviewing someone he is thinking of nominating to the high court, the president will feel more comfortable asking “litmus test” type questions — and the interviewee will feel more obliged to answer them.

“It will be hard to justify any limits” on judicial speech, Shepard said.

Even more long range, at the state level, it is possible that last week’s Supreme Court ruling will trigger a chain of events that leads to states changing the way they choose their judges. In the 39 states that elect some or all of their judges, if campaigns now become intolerably raucous and inappropriate, the reform pendulum may swing again. States now reluctant to give up electing their judges could move toward merit selection and appointment, rather than election.

Justice Sandra Day O’Connor, the only member of the current Court to stand for judicial election (in Arizona nearly three decades ago) pointed to this possibility in a concurring opinion last week. “If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges.”

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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