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Although more than three-quarters of all states elect their judges, there’s a paradox in the process that no one has yet figured out how to square. Voters arguably have a right to know what a judge thinks about the major issues of the day — “the principle that unabridged speech is the foundation of political freedom,” as Justice Anthony Kennedy explained in the U.S. Supreme Court’s 2002 ruling on the subject, Republican Party of Minnesota v. White. But if judges say too much, if they start making election speeches that promise, or even imply, how they might rule, then they will be violating the judiciary’s obligation to remain impartial. And, many legal observers say, when a case comes up on a subject in which they have already stated their opinion, they might even have to recuse themselves. “Vote for me and I’ll defend the traditional family,” says Indiana Chief Justice Randall Shephard, giving an example of the problem. “Now comes the case, and suddenly I have to recuse myself. That makes me a fraud from the voters’ point of view,” says Shephard. ” �I voted for you on this and now you can’t rule on the matter?’ “ What’s the public to do? Replace judicial elections in favor of a merit-selection system? That’s not likely to happen. Judges are already elected in 33 states, and in six others there are only retention elections, which require judges to receive just over half the voters’ approval to stay in office. And ballot initiatives in several states to change to a merit system have all been overwhelmingly defeated. “I think a lot of people distrust the concept of merit selection,” says Kentucky Chief Justice Joe Lambert, who was elected to the bench. “We know how federal judges are chosen, so I’m not so sure you can eliminate politics.” So the question becomes how to reconcile a judicial candidate’s free speech rights with the need to maintain an impartial judiciary which approaches each case anew. Before the White case, Minnesota simply forbade judicial candidates from “announcing” their views on “disputed legal or political issues.” But the Court, in its 5-4 ruling, said that ban went too far. The Court did not rule on the constitutionality of the far more common prohibition — now the rule in about 35 states — which forbids “pledges, promises or commitments” on controversial subjects. Walking the line of making an “announcement” which is not at least an implied “promise” is tough to do, says Phoenix attorney Mark Harrison, who chairs the committee which last week announced the first proposed revision of the American Bar Association’s model judicial code since 1990. “That is the great fear: that what are regarded as �announced’ views are the functional equivalent of �pledges and promises’ to the listener.” The proposed revision doesn’t explicitly tell judges how to deal with this conundrum, says Harrison. Instead, it lays out a general guideline: that judges should be impartial and perceived as such by the public. The more detailed they get in response to questions about their beliefs, the more likely they are to undermine the public’s view of their impartiality. James Bopp Jr. of the James Madison Center for Free Speech in Indiana, who brought the White case, has filed more than a dozen other briefs, including in Kentucky, trying to extend its holding. So far, he’s been scoring big, persuading federal trial and appellate judges to rule unconstitutional other judicial canons, including, for example, “pledge and promise” prohibitions and direct solicitation of campaign donations by judicial candidates. “The judicial establishment has failed to realize there’s been a fundamental change in the law,” says Bopp. “They thought all they had to do was repair a few windows when the foundation for their entire regulatory scheme — for all those speech codes — has been destroyed.” It may take another Supreme Court ruling to know whether Bopp is right. At the very least, the emerging jurisprudence is making it harder for judicial candidates to refuse to fill out questionnaires from conservative and anti-abortion interest groups. And that, says Georgetown University Law Center professor Roy Schotland, who studies judicial elections, is precisely the point. “It’s a turnout tool,” he says of the Bopp litigation. “They want a litmus test before a guy can become a judge.”
T.R. Goldman can be contacted at [email protected].

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