A Supreme Court test of whether candidates for elective state judgeships have a First Amendment right to express their views on legal and political issues has helped bring into focus a disturbing trend in some of the 39 states that choose judges by popular election. Judicial campaigns, once sleepy affairs that incumbents won in a walk, are getting more politicized, meaner, more expensive, and more awash in special-interest money.

As judges and challengers gird to compete for seats on the highest courts of 33 states this year, we are likely to see more stunts like these:

  • The Ohio Chamber of Commerce ran television ads in 2000 showing a statue of Lady Justice peeking from under her blindfold as piles of money tip her scales and an announcer says that Justice Alice Resnick had ruled "nearly 70 percent of the time" for trial lawyers from whom she had taken more than $750,000 since 1994. The ad concludes: "Alice Resnick. Is justice for sale?"
  • A Michigan Democratic group attacked three state Supreme Court justices as "Republicans who put big corporations and insurance companies ahead of people" by supporting "a law that could hurt families whose loved ones were killed or injured in accidents with Firestone tires."
  • A successful candidate for the Texas Court of Criminal Appeals declared in a 1994 speech, "If you elect me, I will never, ever, vote to reverse a capital murder case."
  • A Nevada Supreme Court justice in 1997 advertised a "record of fighting crime," including 76 votes to uphold death sentences.

    Television attack ads have become common in judicial elections in states such as Alabama, Illinois, Michigan, and Ohio, where business interests vie with trial lawyers for control of the highest courts. And judicial candidates nationwide raised a whopping $45.6 million in 2000—61 percent more than in 1998, and 100 percent more than in 1994—to finance their own TV ads and other campaign activities. Polls suggest that three-fourths of voters think that campaign contributions do influence elected judges' decisions.

    The case that the Supreme Court will hear on March 26, Republican Party of Minnesota v. Kelly, involves not campaign money (that could be the next case, or the next), but a clash of two constitutional principles: the First Amendment rights of candidates to express their views on issues of interest to the voters versus the due process rights of litigants to be heard by impartial jurists who will not bend the law to keep campaign commitments. (See this issue, p. 880.)

    The case involves a challenge by Gregory F. Wersal, an unsuccessful Republican candidate for the Minnesota Supreme Court, to that state's rule specifying that judicial candidates—and their families—may not "announce their views on disputed legal or political issues" that might someday come before them. The First Amendment, Wersal argues, surely entitles all candidates to explain their views to those whose votes they seek. Federal district and appellate courts disagreed, holding Minnesota's so-called "announce clause" to be justified by the need to preserve both judicial impartiality and its appearance. A Supreme Court ruling for Wersal could doom, or narrow, similar rules in more than 30 other states.

    And that, fears Georgetown University law professor Roy A. Schotland, could "have a significant, possibly devastating, impact on judicial elections," dragging them deeper into the pit of legislative-style politicking. Other defenders of the Minnesota rule include the American Bar Association, the Conference of Chief Justices, and much of the legal establishment. They warn that applying First Amendment absolutism to judicial elections could make a mockery of the idea that judges are neutral, impartial followers of the rule of law, while subjecting them to interest-group pressure to subscribe to prescribed positions on hot-button issues such as abortion. The root of the legal establishment's problem is the inherent difficulty of ensuring that elected judges will be impartial; the solution embraced by the ABA and others is to take the politicking out of judicial elections by silencing the candidates.

    Most states have long used elections of various types (partisan, nonpartisan, and retention) to make their judges accountable to the voters. But accountability coexists uneasily with independence, impartiality, and the judicial duty to protect the legal rights of unpopular criminal defendants and other litigants from the tyranny of the majority. That's why the Framers of the Constitution provided for presidential appointment of federal judges and for life tenure.

    And that's why the highest courts of most states with elected judges have adopted various rules to restrain the politicization of the judiciary, including provisions barring candidates from making campaign statements that cast doubt on their impartiality. The motives behind such rules—which tend to enhance the heavy advantage enjoyed by incumbents in judicial elections—may not be entirely disinterested. But it is undisputed that at least some speech restrictions that would be unthinkable in any other election are constitutionally appropriate in judicial elections. Even Wersal and the groups supporting him, including the Minnesota Republican Party and the American Civil Liberties Union, concede that states can bar judges from explicitly promising to decide particular cases or classes of cases in a particular manner. Minnesota and most or all other states do just that, in separate provisions that are more specific than the "announce clause."

    The central question in the Minnesota case is whether the goal of preserving judicial impartiality and due process warrants carving a much broader exception out of the First Amendment, and prohibiting judicial candidates from saying anything at all about the issues. The answer, in my view, is no. While such sweeping gag rules have the virtue of making it harder for judicial candidates to signal how they would rule in future cases, they do so by drawing a line that censors all campaign speech excepting platitudes and biographical details. Broadly construed, such vaguely worded rules bar candidates from expressing opinions about matters including "substantive due process, economic rights, search and seizure, the war on drugs, the use of excessive force by police, the conditions of the prisons, or products liability," in the words of a 1993 decision by Judge Richard A. Posner of the federal appeals court in Chicago, striking down an Illinois gag rule identical to the one now before the Supreme Court.

    While carrying censorship of political speech to extremes, even a broad gag on candidates can at best plug only one hole in a very leaky boat. No such rule constitutionally can or should bar incumbent judges from detailing their views in their judicial opinions. No rule can or should bar challengers from doing the same in speeches or articles before they declare their candidacies. No rule can prevent a candidate's supporters from publicly characterizing his or her views. And no rule can stop interest groups, the news media, or other noncandidates from attacking (or even distorting) the views of a judge or a judicial candidate. So it's questionable whether broad gag rules do much good in restraining the trend toward more vicious judicial elections. And it's clear that they do considerable harm, both by barring candidates from responding specifically to critics and by denying voters the information to cast informed ballots.

    Indeed, of the four examples of sleazy campaigning noted above, only the fourth would have been prevented by enforcement of a broad rule gagging candidates: Such a rule could not have been used to block noncandidate attack ads, and would no more have restrained the Texas candidate who promised never to overturn a death sentence than did the clearly valid rule (against campaign promises) that she so flagrantly violated.

    States that want to give their judges more insulation from the whims of the electorate and the influence of special-interest money have options other than broad gag rules. They could move toward some form of merit selection; in the 17 states where judges are initially appointed and face only up-or-down "retention elections," most win easily, quietly, and inexpensively. States could cap contributions to candidates, could require disclosure of the sources of funding for noncandidate campaign ads, and could offer public financing to candidates who shun special-interest money. They could also make it easier for litigants to force recusal of judges whose campaign statements cast doubt on their impartiality.

    In any event, many voters want judges to be fair, and demagogic campaign tactics and big money will not always prevail. The Chamber of Commerce attack ad in Ohio, for example, backfired by offending so many voters that it helped Justice Resnick win another term even though her opponent greatly outspent her. The biggest-spending candidates in the record-breaking 2000 Alabama Supreme Court campaign lost. Voluntary bar groups and community leaders can monitor and denounce inappropriate or misleading campaign statements. The best way to elect good judges—if elect them we must—is not to gag the candidates but to educate the voters.

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