Judge on the Stump: What Can-And Can't-State Judicial Candidates Say? (Gazette)

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THE CONCLUSION OF THE Supreme Court's term usually brings a spate of opinions in the most contentious and closely divided cases of the year, and this year's session did not disappoint. On its final day, the Court issued four 5-to-4 rulings, among them its controversial decisions on school vouchers and student drug testing. All but lost in the ensuing hubbub was an important holding that struck down a limitation on the speech of candidates for state judicial office. In finding that the First Amendment rights of judicial candidates outweigh a state's efforts to curtail abuses of the process, the Court threw into question similar regulations in 38 other states. Judicial races increasingly resemble political ones, as massive amounts of money buy advertisements that distort, misrepresent and politicize judicial opinions.

Two years ago in Michigan, for instance, with three Republican justices up for re-election, a record $15 million was spent in a battle to control the state Supreme Court. The Republicans' backers paid for TV spots that attacked one Democratic candidate for previous rulings he had made as a lower appellate court judge. The ads claimed that the judge "gave" a pedophile "a slap on the wrist" when, in fact, the judge had been part of a majority on an appellate panel that had merely upheld a trial judge's sentence on appeal (as the panel was bound to do by law). In case viewers missed the point, though, the ad included both the judge's name and the word pedophile in large letters.

The specific question in Republican Party of Minnesota v. White was a relatively limited one: Can the state of Minnesota, which elects its judges like many other states, adopt a judicial regulation prohibiting candidates for judicial office from announcing their views on "disputed legal or political issues"? That is, can a state limit a prospective judge from announcing a position because such a statement might compromise the judge's independence? (A companion regulation that prevents candidates from "making pledges or promises of conduct in office" was not contested.)

The impact of this decision goes well beyond Minnesota, since the flood of big money into judicial races is increasingly the national norm. [See "Justice For Rent: The Scandal of Judicial Campaign Financing," TAP, May 22, 2000.] As a recent report by the Brennan Center for Justice documented, donations to state supreme court candidates grew to more than $45 million in the 2000 election cycle, an increase of 61 percent from just two years earlier.

Worse yet, the increase is coming from parties with significant interests before these courts. According to the National Journal, two of the nation's biggest business groups, the U.S. Chamber of Commerce and the Business Roundtable, have already amassed a $25 million war chest and are endeavoring to raise more. Their aim is to elect more business-friendly state supreme court justices and attorneys general.

AT THE CENTER OF THE MINNESOTA case, as with most challenges to campaign-related reforms, is a classic First Amendment question: To what extent can candidates' statements be restricted, either by a specific rule or through limitations on spending in campaigns? In 1996, Gregory Wersal, a Republican candidate for the Minnesota Supreme Court, criticized a number of the court's decisions and positioned himself as a strict constructionist determined to dethrone the judicial "activists." Fearing sanction for having gone beyond the bounds of the state's prohibition on announcing positions, however, he withdrew his candidacy. When he ran two years later, the state's ethics lawyers told him he could not make those kinds of statements in his campaign. At that point, together with the state Republican Party and the American Civil Liberties Union, he filed suit.

In striking down the Minnesota rule and overturning a decision by the 8th U. …

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