The Supreme Court last week struck down a Minnesota rule of judicial conduct barring candidates in judicial elections from announcing their "views on disputed legal or political issues."
Most of the 39 states in which some judges are popularly elected use a version of this well-intentioned rule, which is based on an American Bar Association standard and is designed to prevent judges (or potential judges) from declaring in advance how they regard matters that could come before them in court. But the rule, as Justice Antonin Scalia wrote for a five-member majority of the court, is impossible to square with the First Amendment's guarantee of free speech. It attempts to control the ill effects of judicial elections "by preventing candidates from discussing what the elections are about." The problems with judicial elections cannot be fixed by regulating speech. The problem is the elections themselves.
The dissenting justices argued that judges are different from other candidates, because -- as Justice Ruth Bader Ginsburg put it -- their "office . . . is to administer justice without respect to persons." They are not representatives of the people or "political actors," so it is okay to allow "the people to elect judges (while) safeguarding the process so that the integrity of the judiciary would not be compromised."
Actually, it's impossible. As Justice Sandra Day O'Connor points out in a concurring opinion, compromising the integrity of the judiciary is inherent in the process of electing judges. Subjecting judges to elections makes them into precisely the political actors Justice Ginsburg insists they should not be. Judges then have to raise money. They have to garner support. And to do these things, they have to somehow indicate how they will address issues of controversy. Regulating what candidates may say constrains the manner in which they may do so. But such regulations treat the symptom, not the disease. As Justice O'Connor put it, if states have "a problem with judicial impartiality, it is largely one (they) brought upon (themselves) by continuing the practice of popularly electing judges."
Defenders of judicial elections frame the issue as one of democracy: Why shouldn't the people get to choose their judges? The answer is that judges are supposed to rule by principle, not according to the desires of their constituencies. Asking elected officials to ignore their constituencies is a fruitless exercise. The Framers of the federal Constitution -- under which judges are appointed and then insulated from political pressure -- knew better.
-- Washington Post
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