Justices Lift Free-Speech Limits on Judicial Candidates

WASHINGTON -- Candidates who are seeking election as judges have a free-speech right to take stands on issues they may someday have to rule on, the Supreme Court said Thursday.

Judges need to be open-minded, but they need not be empty-headed, said Justice Antonin Scalia, speaking for the 5-4 majority.

“It is virtually impossible to find a judge who does not have preconceptions about the law,” Scalia said. And it is “at the core of our 1st Amendment freedoms” that candidates are free to tell the public about their views, he said.

The ruling strikes down the judicial codes in at least nine states that say prospective judges may not “announce” their views on issues that might come before the court.

It also undercuts similar rules in the other 30 states that elect judges, including California, that say judicial candidates must not “commit” themselves to particular views.

Gregory Wersal, an outspoken opponent of abortion who ran unsuccessfully for a Supreme Court seat in Minnesota, challenged the no-comment rules, and Minnesota Republicans took up his cause.

The free-speech decision in Republican Party of Minnesota vs. Minnesota Board of Judicial Standards, 01-521, also comes at a time when judicial elections are being transformed by big-money advertising. Two years ago, business interests spent millions of dollars in TV advertising in an unsuccessful effort to unseat liberal judges in Ohio, Michigan, Alabama and Mississippi.

Judicial groups have decried this trend, but they have no means to stop it.

The dissenters and the leaders of the American Bar Assn. called Thursday’s ruling a serious mistake and said it threatens to transform judicial elections into political free-for-alls. Judges are supposed to be impartial and above the fray, not politicians in robes who represent certain views.

“Judges speak in the name of the law. [They] do not act on behalf of particular persons, communities or parties,” Justice Ruth Bader Ginsburg said in a dissent she read after Scalia had finished.

Once again, the case split the appointed and presumably apolitical justices on ideological lines. Scalia was joined by his fellow conservatives: Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy and Clarence Thomas.

Meanwhile, Ginsburg was joined in her dissent by her liberal colleagues: Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

In his opinion, Scalia stressed that states choose to elect their judges.

They need not do so, but once they have made this choice, they cannot muffle candidates from speaking their minds, he said.

“We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election,” he said.

Nonetheless, beginning in 1924, the ABA encouraged states to adopt codes that limited what judicial candidates could say. The rule in Minnesota said a candidate for a judgeship shall not “announce his or her views on disputed legal or political issues.”

This prohibition “extends to the candidate’s mere statement of his current position, even if he does not bind himself to maintain it” if elected, Scalia said.

Lawyers such as Wersal who violated the code were subjected to a variety of punishments, including a suspension from practicing law or even disbarment.

California has a more lenient standard. It says, “A candidate for election or appointment to judicial office shall not make statements

Charles Lindner, the former president of the Los Angeles County Bar Assn., said it is common for judicial candidates to campaign by criticizing incumbent judges.

“They tend to say the incumbent is soft on crime or something of that sort,” he said.

But judges who are on the bench usually have to be more restrained in defending themselves, Lindner added.

The state Supreme Court justices in California are appointed by the governor, but they must face the voters in a retention election.

Though these are usually low-key affairs, Chief Justice Rose Bird and two colleagues were ousted during the 1980s in a campaign that focused on the death penalty.

During the oral argument in the Minnesota case, the state lawyer stressed the danger of overly politicized judgeships.

No one would want to come before a judge who has announced he will convict and impose the maximum sentence on anyone charged with a particular offense, whether it be drunk driving or wife beating, he said. These stands may be popular with the voters, but such unyielding stands conflict with the judge’s need to be impartial, he said.

But Scalia noted that this case dealt only with controversial statements, not “pledges or promises” to rule a certain way. Minnesota also bars judges from making such pledges, but that rule was not challenged, he said.