This case was heard before the US Supreme Court yesterday.
I think it’s an obvious violation of free speech. Although the law may be quite beneficial, it doesn’t rise to the emergency, life-and-death level of provoking a riot in a crowded theatre.
OTOH it has been upheld by 2 federal courts and by the Minnesota Supreme Court, so others see it differently. (And, those others are judges, whose legal knowledge is greater even than mine. :eek: )
Also, as the Times article implies, the results on this case may be a harbinger of the Court’s attitude toward CFR.
What do you think? Will this law be overruled? By what margin?
I’ll predict optimistically a 9 to 0 overrule (but I won’t bet more than 50 cents on that outcome!)
The Supreme Court gets to decide this question. If I were a Supreme, I’d hate Diana Ross, and rule that this was a stupid, stupid rule. It’s not that these folks don’t have opinions. As long as we are electing judges, wouldn’t it be nice to know what their positions were?
I’ve never heard of this before, but it sounds like a necessary rule to me.
My rationale:
If judicial candidates are allowed to comment on issues that may come before them, they will end up advertising their biases.
Political candidates, especially judicial candidates, as well as elected officials, are and should be held to a different standard than “average” citizens. Most judicial candidates are already lawyers (is a law degree required for a jugdeship?), and are in theory held to a special canon of ethics. In addition, political candidates are usually required to provide some kind of financial disclosure info. Is this violating their right to privacy? Perhaps if they had the same rights as you and I, but IMHO, they don’t.
I dunno . . . I think it’s probably unconstitutional. On the other hand, I really don’t want judges up there telling me how they’re going to rule if I elect them. Hopefully they’d judge on the facts, and not already make up their minds. (And in a state like Texas, it would rapidly become a contest to see who could out-conservative the other during the campaign. Sigh.) But on the gripping hand, they probably think these things anyway whether they say them or not.
Appointment might be a good solution, at least for the highest courts in the states.
Along the line of abolishing election for judges, might I suggest the compromise approach: regularly scheduled retention votes. Judges in Alaska appear on the ballot every, like, 5 years of their terms. Judges are usually retained, based on the recommendation of a non-partisan review panel, who evaluate the conduct of each judge.
The judges themselves do not campaign (or, for that matter, say much of anything outside of the courtroom). But anyone with an axe to grind can use the retention vote as an opportunity to run their own campaign to toss the bum out.
Well, it sort of already has, here in Minnesota anyway.
A number of judges who don’t intend to remain on the bench will resign shortly before the end of their term thereby allowing the governor to appoint someone to replace them (unless they’re disctinctly opposed to the governor–then they play out the string), and that means that…
…when the appointees come up for re-election, they have the word Incumbent after their name, and incumbents almost always win (and quite often run unopposed).
Personally, I’d really like to hear the views of the people running for judgeships, because when they get to the point that they’re “legislating from the bench,” I’d like to have an idea of where they’ll be coming from…particularly if they’re running for a seat on the state supreme court.
url=http://www.nytimes.com/2002/03/28/opinion/28GILL.html?pagewanted=print&position=top]This article by Stephen Gillers says that the Minnesota law is unconstitutional, but it still recommends some restrictions on what judicial candidates may say. Maybe it’s a good compromise.
I think that is the problem. Certainly people would like to know what their judges think so they can be certain to vote in judges who reflect their personal opinions. Unfortunately this can be bad for any minority (minority in terms of a given stand on an issue). Sometimes merely reflecting majority will is not in the best interests of the country (tyranny of the majority).
I wouldn’t mind judges expressing their viewpoints if the judge would recuse themself from a trial where they have shown themself to be opinionated on the topic at hand. Is there anyway for the participants in a trial to force a judge to recuse themself if they can show the judge may not be entirely fair?
I’m sure that’s exactly the problem. On the other hand, the courts in Minnesota are known to be quite “activist,” so I’d still like a hint as to how a prospective jurist is going to interpret the law.
After all, we vote for legislators who seem to represent our opinions…why not judges?
I agree with these two posts, as far as they go. However, ISTM the REAL problem is that some judges legislate from the bench, period.
Unfortunately, that problem cannot be cured by restricting candidates’ speech. Really, there’s no way to stop a judge from legislating in her decisions. It’s not comfortable to admit that our legal system has a major, incourable problem. It’s more appealing to focus on a partial solution.
Our country was founded on the notion of checks and balances. We vote for our legislators to draft laws and we are still playing with ideas on how to get judges to interpret those laws. Nevertheless I find the notion of voting for judges to be a bad one since I do not want a copy of my legislator sitting on the bench.
If judges had all been voted in by a majority we, as a country, may never have seen the end of Jim Crow laws. I’m sure a great many southerners would find any judge who overturned a Jim Crow law to be “activist” and “legislating from the bench”. Of course, many blacks were denied the right to vote through various means (ala poll taxes or other measures) so which judges do you think would likely make it to the bench? The ones who expressed their support for ‘separate but equal’ or the ones who expressed their dislike of the current system?
That’s just one glaring example I can think of as to where this sort of thing could lead. I’m sure you could think of more.
I agree with Rystad and would like to add the following.
Even so-called “merit appointment” of judges are really political decisions. Governors, not to mention Presidents, appoint judges whose’ views mirror their own and who have political connections to them, ie, be from the same political party, or have worked a law firm that made contributions to the governor’s campaign, or went to the same law school, or whatever. To say that appointments are strictly on merit ignores the fact that merit is in the eye of the beholder. I’d rather the merit be determined by popular vote rather than have the post go to an insider with ties to the governor.
The rules against allowing judicial candidates to speak their minds on their own behalf lead to problems like we have here in Ohio, where candidates for trial judge run commercials of themselves pictured with the adoring families saying that they’ll be “tough on crime”. Every single candidate runs the same damn ad, which is not at all illuminating for someone seeking information about the candidates. For higher judicial office, meaning the state supreme court, campaigns have devolved to the point where proxy groups (such as labor unions and/or the business council) launch smear campaigns, knowing that the target can’t fight back directly for fear of violating the prohibition against speaking his or her mind on issues that might come before the court.
Define “opinionated.” It’s one thing if a prospective judge has done something to indicate he won’t give parties to a dispute a fair hearing, quite another if he’s indicated that he sees the law in a particular way. Indeed, for voters choosing among judges, the latter is precisely the information they need to make an informed decision. It would be self-defeating to ask a judge who was elected because of a particular view of a particular law to step aside when cases that involve interpretations of that law arise.
Actually, I don’t think anything would’ve been much different there since it was federal judges that overruled the state/county judges in that instance.
Also, I believe that many of those state/county judges were voted in.
Besides…even the ones who were appointed…who do you think appointed them? Lester Maddux, George Wallace, et al.
At least if they were elected, and if they were able to express their views somewhat while running for office, then the populace might be able to make a better informed choice.
I hate to rise to December’s bait, but here goes. It seems to me that it is unlikely that the US Supremes will say that judicial elections are any different than any other election and therefore restraints on what a candidate can say are not allowed. Question what such a decision would say about the Court’s ruling on the McCain-Fiengold Act. I am afraid that the decision in the Minnesota case will not even be close. If anything we may see the more conservative members of the Court saying that candidates for the bench may be muzzled with the more liberal members going for an all out political process. The consequence of such a decision may be to encourage every demagogue in the township to run for judge on a platform of pandering to the great unwashed on every hot button issue that can be dredged up. I see judges that are so publicly committed to a view of the law and an approach to facts that their usefulness as impartial arbiters is lost. This is not to say that there aren’t judges out there whose impartiality is questionable now. It would be nice to walk into a courtroom once in a while and find that there is not a prosecutor on the bench as well as one at counsel table. A tell-us-how-you-are-going-to-rule election will simply exacerbate the situation.
For instance, how do you deal with a judge who was elected after claiming he was a friend of the police and the enemy of criminals, who appeared at the hustings arm-in-arm with city, county and state police officers? Can you really expect a fair ruling out of this guy on narrow questions of criminal procedure or the credibility of police officers? How do you deal with the judge who was elected on a platform of support for family values (the code word of the moment) and of reducing the number of divorces when you take a divorce case before him? And don’t tell me that I can always appeal. Appeals cost money. Usually more money than criminal defendants and divorce clients have. The public legal assistance offices are buried and under funded. For most people the trial judge is the only shot they have. When the trial judge has publicly declared and promised the electorate a certain outcome in his court that’s not much of a shot.
I understand what you’re saying, Spavined Gelding, but in reality, what would be so different than what already occurs now?
Lawyers often go “forum shopping” in divorce cases in order to try and get a more amenable judge. I did in mine.
And, I believe it would be a little more honest if the person on the criminal bench had actually come out and stated his views rather than cloaked his “hang 'em high” leanings behind an impartial persona.
Maybe there’d be some more plea bargaining going on, who knows?