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As a candidate for the Pennsylvania Supreme Court, Max Baer has been exercising new speech freedoms the U.S. Supreme Court granted last year when it loosened judicial campaign restrictions. Baer has openly and repeatedly expressed his views on hot-button issues, among them abortion and “tort reform.” He is in favor of abortion rights and against caps on tort judgments. But he’s not relishing his new rights. It’s made campaigning harder, he said. The Supreme Court’s ruling “makes sense,” said Baer, adding that he agrees with the majority’s rationale that if judges are to be elected, elections should be meaningful and that gagging candidates violated their free speech rights. Republican Party of Minn. v. White, 536 U.S. 765 (2002). The court’s decision, however, “has not made life easy,” he said. To follow Pennsylvania’s new rule, Baer said, every time he takes a position, he must explain that his view is not a prediction of how he’d rule in an actual case. “I have to make it very clear,” he said. Talking about your views lets voters align with candidates with whom they share “a vision of life,” said Baer, a Democrat but “not a litmus-test liberal.” He said he supports labor unions, but favors the death penalty and opposes gun control. Meanwhile, Baer’s Republican opponent for the high court job, which pays $139,585 and has a 10-year term, is keeping quiet about her views. Judicial election watchdogs are eyeing Pennsylvania’s partisan race to see how the two opposing strategies go over with voters on Nov. 4. Pennsylvania has the only judicial election this fall, but it could foretell what’s to come in November 2004 when more than 60 Supreme Court incumbents in more than half the states face re-election. “There are clouds forming on the horizon” indicating that candidates’ openness about issues will attract greater involvement from special interest groups, said Bert Brandenburg, a spokesman for Justice at Stake in Washington, which monitors judicial elections. In Pennsylvania, interest groups including anti-abortion, pro-abortion rights, Catholic, construction, gay rights and agriculture organizations have asked the candidates to complete questionnaires on their positions. Using the high court case as a “new tool,” interest groups will get only more aggressive in pushing candidates to take positions on issues, luring them with the prospect of contributions, Brandenburg said. Judicial politics is still a beachhead for national special interests, he said, but their role has been growing since 2000 when trial lawyer and business groups began spending millions on judicial candidate advertising. “We all know next year is really the acid test,” he said. The candidates Baer is an Allegheny County trial judge who has raised about $700,000. It’s far from clear whether his vocal strategy is a winning one. Every position he takes has opponents: staunch, vociferous and organized opponents, such as anti-abortion and medical and business groups. These groups, plus law enforcement agencies and the International Brotherhood of Teamsters, are supporting Baer’s opponent, Joan Orie Melvin, a state appellate court judge who has raised about $500,000. She won’t discuss her views except to describe herself as a “strict constructionist” who would decide constitutional questions by examining legislative intent, not by personal philosophy. Despite U.S. Supreme Court approval of judicial candidates announcing personal views, Melvin said it’s inappropriate and problematic to discuss disputed legal and political issues. Though espousing views might engage a political group, it also creates expectations of outcomes-even if the judicial candidate explains the difference, she said. That expectation undercuts a fair hearing, she said. “Your personal opinion is totally irrelevant when you are applying the rule of law to facts,” she said. Baer’s openness is putting “a lot of pressure” on her campaign, she said. “I’m running on a record.” The new rule In its high-profile June 2002 decision, the U.S. Supreme Court struck Minnesota’s so-called “announce clause” of the state’s judicial regulations, which barred judicial candidates from announcing views on disputed legal or political issues. The ban violated the First Amendment, Justice Antonin Scalia wrote for the five-justice majority. Five months later, the Pennsylvania Supreme Court rewrote its rule, which had been identical to Minnesota’s. The court replaced the prohibition with the following: A candidate may not “make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” This newly enacted provision is cited by Melvin when declining to answer questions. Pennsylvania was among eight states with announce clauses, said Roy A. Schotland, a Georgetown University Law Center professor and an authority on judicial elections. Missouri and Texas have also repealed their provisions. Other states have amended their rules or have changes in the works, he said. The remaining 33 states where judges are elected still have prohibitions against making commitments or pledges about cases, said Schotland. Baer said he can tell unions he believes in organized labor, but it “doesn’t mean labor will prevail on a given set of facts,” he said. That distinction may be lost on many voters, say Schotland and other critics of the White decision. Lynn Marks, executive director of Pennsylvanians for Modern Courts, which filed an amicus curiae brief in the Minnesota case supporting the speech restrictions, is squirming over Baer’s commentaries. “We find it worrisome,” she said. “A judicial candidate can cast about for votes by stating views on hot-button issues.” Litigants will then think they’re not getting a level playing field and the judicial system is undermined, she said. “Make no mistake about it. The Supreme Court ruling is deeply troubling.” “I don’t blame him for speaking out,” Marks said of Baer. “Hey, he wants to win. But maybe he’ll find out it’s not a good strategy.” Abortion and tort reform may be rallying cries for some voters, and a candidate might galvanize support among similar-minded people, she said. It cuts both ways, however. And, in fact, Baer said voters sometimes approach asking, “Are you pro-life?” When he tells them he is pro-choice, he said, they are polite but walk away. Baer is not the first Pennsylvania judicial candidate who has announced opinions about contested legal issues, according to an amicus brief filed in the Minnesota case. According to the brief by Pennsylvanians for Modern Courts, a federal court enjoined the enforcement of Pennsylvania’s announce clause shortly before a 1991 judicial election. The injunction was later vacated, but not before one candidate was quoted in a newspaper saying the testimony of police was more reliable than that of defendants. ‘No buzz’ Hearing a Supreme Court candidate talk about his views on abortion and tort reform hasn’t exactly electrified the electorate. “There is no buzz about the judicial elections,” said Marks. Local races are in the spotlight, she said. “I don’t think it’s of paramount interest,” Baer said of his new freedom to campaign. Few voters ask him about tort reform, though he does call caps unfair in his stump speech. Baer argues that caps discriminate against people who don’t have incomes, such as the elderly, students and stay-at-home parents. Tort reform is far from settled in Pennsylvania, and may end up in the courts. Richard J. Schubert, president of the Pennsylvania Trial Lawyers Association and a partner at Lydon & Schubert in Pittsburgh, said a bill capping noneconomic damages at $250,000 in all tort cases has passed the state House. The bill would provide for a referendum to amend the Pennsylvania Constitution, which since the 1880s has prohibited the Legislature from limiting recovery by injured people, except in workers’ compensation cases, Schubert said. Baer and Melvin both met with the trial bar’s board, Schubert said. Baer stated his opposition to the cap, he said. Melvin did not state a view, but she offered court opinions that were pro-consumer, such as those allowing individuals to sue health maintenance organizations, Schubert said. He said that some of the trial bar members support Melvin. Baer said his opposition to caps doesn’t mean he would vote against them should the issue come before the court. If a tort reform measure passes the Legislature and the referendum is approved, Baer said, he would abide by it. He said that he won’t recuse himself in such a case if he’s elected. “I will uphold the law,” he said. The recusal issue is one reason Melvin has avoided discussion of personal positions. She noted that the standard for mandatory recusal in Pennsylvania is that a “significant minority” would reasonably question the court’s impartiality. How can an outspoken judge avoid regular recusals when all it takes is a minority in doubt, she said. Coincidentally, Scalia, who wrote the majority opinion in the White case, won’t participate in a case over the use of “under God” in the Pledge of Allegiance in schools, the Supreme Court said last week. It didn’t explain the reason for the recusal, but the original plaintiff and a supporting organization had noted in letters to the court that Scalia had publicly criticized the 9th U.S. Circuit Court of Appeals decision being appealed. The outlook The White decision ultimately will “make a big difference” in the speech surrounding judicial elections, said Michael E. DeBow, an advocate of judicial elections and professor at Cumberland School of Law at Samford University in Birmingham, Ala. Candidates will become comfortable explaining the difference between announcing their views as opposed to committing to positions on issues, he said. J.J. Gass, associate counsel at the Brennan Center for Justice at New York University School of Law, said that in future elections most judicial candidates won’t completely politicize their campaigns, but others may use their new freedoms to turn theirs into a “circus.” The center, among other things, monitors judicial selection. Keeping watch for such spectacles is Mark I. Harrison, chairman of an American Bar Association commission evaluating a model code of judicial conduct. “These are very difficult questions,” said Harrison, a partner in the Phoenix office of Bryan Cave. “There are those who feel very strongly that the public has a right to know” a judicial candidate’s views.

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