vin/020402.html
In thirty-eight states, including Nevada, the voters elect their judges, rather than standing by and waiting to see who the political insiders choose. But nine of those states, including Minnesota, officially prohibit judicial candidates from announcing their views on "disputed legal or political issues."
And even in states which fail to make that formal list of nine, the current interpretation of "judicial ethics codes" often have the same paralyzing effect. (One recent candidate for a Nevada judgeship was officially censured for merely identifying his political party.)
The rationale is that judgeship races should retain a higher level of dignity, and that judges should not be pressured by the competitive fray into casting aside their ability to administer justice fairly. How could a suspect hope to get a fair trial -- or the judiciary maintain its reputation for impartiality -- if the judge in question had won election by vowing, "If I'm elected, I absolutely guarantee you that (insert name of notorious suspect awaiting trial) will hang!"
No one wants that. But as currently applied, these restrictions on campaign speech go much further. Even asked to explain their general judicial philosophy -- their position on whether the Constitution still has the effect of limiting the government's powers, say, or whether it's ever appropriate to punish police and prosecutors and taxmen for depriving citizens of their liberties under color of law -- most judicial candidates seek shelter in these handy gag orders, patiently explaining, "I can't comment on any matter that might come before the court."
Judicial elections thus come down to a modern game of "pin-the-tail-on-the-donkey," with blindfolded voters deciding the future of their own courts by choosing candidates based on little more than name recognition, where they went to school, whether they take a good picture, and the color schemes of their posters.
One judicial candidate who chafed under such a gag order was Minnesota Republican Greg Wersal, who contends he was unconstitutionally silenced when he wanted to tell Minnesota voters how, as a state judge, he would be tough on criminals.
Left without that avenue to distinguish himself in the eyes of voters, Mr. Wersal was left at a huge disadvantage in his unsuccessful 1998 race against Alan Page, the former Minnesota Vikings football star, Mr. Wersal argues.
On March 26, Mr. Wersal's case reached the U.S. Supreme Court.
"The people can be trusted to make the decisions ... as long as they have the information to make those decisions," argued lawyer James Bopp on behalf of Mr. Wersal and the Minnesota Republican party. In a happy marriage of strange bedfellows, that argument found backers this week among both conservative groups such as the American Center for Law and Justice and the U.S. Chamber of Commerce, and such liberal stalwarts as the American Civil Liberties Union and Ralph Nader's Public Citizen.
"Such speech is core political speech, commanding the highest degree of First Amendment protection," the ACLU wrote in its friend-of-the-court brief. "The First Amendment does not permit the government to dictate what voters may consider in electing candidates for public office."
Pretty much alone on the side of continuing this evisceration of the First Amendment? The American Bar Association, of course, along with a substantial list of lower-court judges who (for some reason) would just as soon not have their own political and judicial philosophies exposed to public scrutiny.
Observers fear the high court will now do its usual, less-than courageous splitting of hairs, attempting to craft a ruling on the most limited possible grounds, finding merely whether Minnesota's judicial campaign gag order is "too broad," while letting the general practice survive.
But that would be a mistake, a missed opportunity, and potentially even a dereliction of duty. The 14th Amendment bars the states from "abridging the privileges or immunities" of a citizen of the United States, of which Mr. Wersal undoubtedly is one. This amendment had the effect of extending down to the state level the immunity from infringement of Mr. Wersal's free-speech rights, as in: "Congress shall make no law ... abridging the freedom of speech."
Someone certainly abridged Mr. Wersal's ability to speak freely during the campaign in question -- and it had nothing to do with "yelling fire in a crowded theater" (which is perfectly legal, by the way -- in fact, it's the recommended course of action should the theater catch fire.)
And when can free speech possibly be more vital than in our political campaigns?
The losers have been the voters, who have ended up choosing their judges as though they were blindfolded participants in some meaningless children's game.
The high court now has an opportunity to end that. The question is why so many lawyers and judges seem to prefer keeping us in the dark.
Vin Suprynowicz is assistant editorial page editor of the daily Las Vegas Review-Journal, and the author of "Send in the Waco Killers." For information on his monthly newsletter, "Privacy Alert," or on his new book, "The Ballad of Carl Drega," dial 775-348-8591, or e-mail privacyalert@thespiritof76.com.
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Vin Suprynowicz, vin@lvrj.com
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