Speech limits weighed for judge candidates

The high court considers how far states can go in curtailing their campaign speech.

When Gregory Wersal decided to run for a seat on the Minnesota Supreme Court, he prepared for a tough election battle. He formed a campaign committee with a snappy name – the Campaign for Justice – and approached the Republican Party to seek its endorsement.

But then he ran into what he saw as a brick wall: Canon 5 of the Minnesota Code of Judicial Conduct. It says in part that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues."

This posed a dilemma for Mr. Wersal. How could he run for office without telling voters what he thinks about the issues?

Today, that question moves to the US Supreme Court, where Wersal is asking the justices to strike down a portion of Minnesota's judicial-ethics code as a violation of his free-speech right to conduct a campaign without facing government censorship.

In a case that could set the standard for judicial elections nationwide, the high court is examining how far states may go in curtailing the campaign speech of judicial candidates in an effort to maintain the perception of judges as independent and objective.

Arguments for each side

Critics of the ethics-code provision say it insulates incumbent judges from criticism and prevents newcomers from challenging the judicial status quo.

Supporters of the provision say it prevents would-be judges from trolling for votes by announcing how they are likely to rule on key issues should those issues arrive in their courtrooms.

"The state has compelling interests in preserving public confidence in the independence and impartiality of its judiciary," writes Alan Gilbert, Minnesota's solicitor general, in his brief urging the ethics code be upheld.

The case, Republican Party of Minnesota v. Kelly, arrives at the high court at a time of increasingly heated political activity in state judicial elections across the country. Unlike federal judges, who are appointed for life, non-federal judges in 39 states earn their robes through the crucible of an election.

Most recently, these judicial elections have sparked large amounts of campaign contributions, aggressive special-interest challenges, and questionable campaign tactics by candidates who are competing for jobs that are supposed to be above the political fray. "If judges go too far and say too much on the campaign trail, then there could be a real question as to their impartiality in the courtroom," says Bert Brandenburg of Justice at Stake, a group monitoring the independence of the US judiciary.

"A judge is different from a legislator," Mr. Brandenburg says. "A legislator is paid to make promises and keep promises, but a judge is paid to hear cases impartially."

James Bopp, a lawyer based in Terre Haute, Ind., who is arguing the case for Wersal, says he agrees that judges have a higher responsibility than lawmakers during election campaigns. But he says that shouldn't prevent prospective judges from discussing controversial legal and political issues with voters.

Judges have a dual role, he says. They in effect make law through their rulings, and they decide disputes by impartially applying the law to facts in a case.

'Must keep an open mind'

"Because judges make law, their views about the law are relevant to voters," Mr. Bopp says. "They must also decide cases impartially, so they must keep an open mind."

In addition to barring the announcement of one's views on disputed issues, the Minnesota ethics code also prohibits judicial candidates from pledging to rule in a certain way if elected. Bopp says strict enforcement of this "no pledge" provision is a better way to safeguard the public perception of judicial impartiality than attempting to muzzle incumbent judges and judicial candidates on a broad range of potential topics.

"Judges can be trusted to comply with their oath and decide particular cases in accordance with the law and the facts," Bopp writes in his brief. "A judge's impartiality is not reasonably questioned merely because she has previously expressed her views on the law."

At present, eight states have judicial-ethics codes virtually identical to Minnesota's. All were adopted from a code endorsed in 1972 by the American Bar Association. The ABA changed its ethics code in 1990, in part out of concern that the wording was too restrictive of the speech of judicial candidates. The new wording has been embraced by at least 25 states. It bars judicial candidates from making statements that "commit or appear to commit" a candidate to a particular position on an issue that is likely to come before the court.

Such ethics codes are becoming increasingly important, according to some legal analysts, as both financial and political pressures increase in elections.

"In recent years, candidates and interest groups have spent millions of dollars in fiercely contested judicial races," writes Scott Bales in a friend-of-the-court brief filed on behalf of the Brennan Center for Justice at the New York University School of Law and the American Judicature Society. "One deeply troubling consequence is an increased incentive for judicial candidates to attempt to garner support – in the form of votes, contributions, or advertising campaigns by interest groups – by indicating how they will rule on issues likely to come before the courts."

A decision is expected by late June.

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