Justices Weigh Speech Ban in Judicial Races

It sounded a bit strange from the start: an election contest in which the candidates are barred from telling the voters what they think.

And the more they considered the ban, the more it seemed unconstitutional, a violation of the candidates’ right to freedom of speech.

The Supreme Court justices, all of whom are appointed, took a hard look Tuesday at state elections for judges, and they spent much of the hour voicing their view that states cannot prohibit candidates from speaking their minds.

“I am absolutely befuddled” by the no-comment rules for judicial candidates, said Justice Antonin Scalia. “Minnesota wants its judges elected. But then it prevents the electorate from knowing what the judges believe. How does that make sense?”

“It’s an odd system,” added Justice Sandra Day O’Connor. “And designed for what? To protect incumbents?”

The Minnesota state attorney had a ready answer.

“It’s intended to protect the integrity of the judiciary,” said Alan Gilbert, Minnesota’s solicitor general.

The public wants judges who are fair and impartial, he said. Who would want to go before a judge who has declared his strong views on the key issue in the case during the last campaign, he asked.

In 30 states, all or most judges are elected. And many of those states, including California, enforce an ethics rule that forbids judicial candidates to make “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

This long-standing rule is being challenged by the Republican Party of Minnesota and Gregory Wersal, a three-time loser in races for the state Supreme Court.

Wersal said he was unable to identify himself as a Republican and speak out on issues that would draw the support of conservatives. He was represented Tuesday in the high court by attorney James Bopp Jr., the general counsel for the National Right to Life Committee.

“The 1st Amendment has its more urgent application in election contests,” Bopp said. The voters “need information to make an informed choice.”

The case has drawn wide attention because it comes at a time when state judicial elections are becoming more costly and contentious. Business groups poured millions of dollars into campaign ads two years ago to defeat allegedly anti-business judges in Michigan, Ohio, Alabama and Mississippi.

Decrying this trend, the American Bar Assn. filed a brief in which it argued that respect for the judiciary will be imperiled if campaigns for the bench become overtly political. The ABA drew up the codes of conduct for lawyers and judges that were at issue Tuesday.

When the ABA was mentioned during the argument, Scalia took a swipe at the lawyer group.

“What’s the ABA’s position on judicial elections?” Scalia asked Bopp.

“They are not in favor of them,” he replied.

“I didn’t think so,” Scalia said.

It was clear that he and most of his colleagues thought the state could not both require competitive elections and restrict the candidates from speaking out.

But the justices spent considerable time puzzling over what is allowed and what is not allowed under the current rules.

Chief Justice William H. Rehnquist asked whether a candidate could say the state court was wrong to suppress evidence in many cases. “And if you elect me as a judge, I’ll take a different approach,” he said.

The state lawyer said a candidate can criticize past rulings but cannot say how he would rule “on future cases.”

Rehnquist asked how that made sense. If a candidate says he will be tougher on drug cases, the voters would assume his approach will affect future cases, if he is elected.

“So I can say, ‘This is the worst decision since Dred Scot [the 1857 ruling that upheld a slave owner’s rights in the free states of the North]. It’s a plague over the people. But I’m not telling you how I will vote on the issue?’ ” said Justice Anthony Kennedy, mocking the state lawyer’s argument.

Gilbert conceded it was a fine line. Candidates can talk about their judicial philosophy, but not cross the line to take specific stands on controversial issues, he said.

“Wersal could say he was a ‘strict constructionist’ and opposed ‘judicial activism,’ ” Gilbert said, two general views often voiced by conservatives.

“That’s just fluff,” Scalia snapped. “That’s meaningless.”

Only Justice Stephen G. Breyer spoke up for the state’s law, pointing out that he had tried to draw the same fine line when he appeared before the Senate Judiciary Committee in 1994, talking about judicial philosophy while not explicitly taking stands on issues.

The justices will issue a ruling by late June in the case of Republican Party of Minnesota vs. Kelly, 01-521.