Candidate for bench argues for free speech

Wednesday, March 27, 2002

WASHINGTON -- Candidates for judgeships should be able to tell voters what kind of judge they are getting, a lawyer trying to overturn state gag orders for judicial candidates argued to the Supreme Court on Tuesday.

"The people can be trusted to make the decisions ... as long as they have the information to make those decisions," lawyer James Bopp argued on behalf of the Minnesota Republican party and a failed Republican candidate for a state judgeship.

Greg Wersal claims he was unconstitutionally silenced when he wanted to tell Minnesota voters how, as a state judge, he would be tough on criminals. Wersal argues that he was at a huge disadvantage as he began a 1998 race against Alan Page, a former Minnesota Vikings football star, and needed to make himself stand out.

Thirty-eight states elect judges rather than appoint them. Nine, including Minnesota, prohibit judicial candidates from announcing their views on "disputed legal or political issues."

The case tests the free-speech rights of candidates against the traditional goal of independent, impartial judges.

Tuesday's lively oral argument session frequently turned personal, with Supreme Court justices posing hypothetical questions about what they themselves might be allowed, or provoked, to say about issues.

To the Senate?

"You should go before the Senate," Chief Justice William H. Rehnquist cracked to the lawyer from Minnesota, who was trying to explain what a candidate could and couldn't say.

Rehnquist has faced two Senate confirmation sessions, including a lengthy grilling when he was promoted from an associate justice to chief in 1986.

The U.S. Chamber of Commerce, which has bought ads in several state judicial elections, is backing Wersal's argument. So are conservative groups such as the American Center for Law and Justice and usually liberal ones such 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 a 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," the ACLU said.

Nine states

The American Bar Association and a long list of judges' and legal groups urged the high court to find the judicial speech rule constitutional. The states with similar rules are also backing Minnesota: California, Arizona, Missouri, Montana, Oklahoma, Oregon, Texas and Washington.

A federal court upheld the Minnesota rule, but narrowed the restriction to only those issues likely to come before the state court.

Wersal and the state GOP argue those are the very issues voters want to hear candidates discuss.

A divided three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the rewritten rule last year. The dissenting judge noted "many other states have achieved the same essential goals without trenching upon clearly established constitutional rights."

For the high court, the case will likely come down to whether the rule is too broad, and whether it really accomplishes what the state intended.

The nine Supreme Court justices, like all federal judges, never stand for election. They receive lifetime appointments from a president and are subject to Senate confirmation. They generally refuse to comment on issues that might come before them.

The case comes amid national debate over politics and big money in state court elections.

State Supreme Court candidates raised $45.6 million during the 2000 campaign, a 61 percent increase over 1998 and double the amount raised in 1994, according to a study released last month by Justice at Stake, a coalition of legal and citizens' groups that advocates reform of state judicial elections.

The money is partly going to buy advertisements similar to those for politicians. Special interest groups are behind many of the ads, and in 2000 80 percent of those were negative attack ads, according to the same report.

The case is Republican Party of Minnesota v. Kelly, 01-521.

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