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California may have its problems with fractious judicial candidates, says David Danielsen, the head of the California Judges Association, but “we’re fairly lucky compared to what’s going on in other states.” Among the 42 states that elect at least some of their judges, this year’s races in Illinois, Idaho, Michigan, Ohio and Alabama stand out as some of the nastiest and most expensive. Decrying the escalation of politicized, high-priced and abusive judicial campaigns, Roger Warren, president of the National Center for State Courts in Williamsburg, Va., is coordinating a summit meeting of chief justices from the largest states, to be held in Chicago in December to discuss the phenomenon. With court reform advocates and legislators attending, Warren, a former Sacramento Superior Court judge, told The New York Times that one goal will be to develop nonpartisan ways to deliver information about candidates to voters. Another group with a national reach that’s trying to restore decorum is Citizens for Independent Courts, under the leadership of former White House counsel Lloyd Cutler, a Democrat, and Harvard Professor Mickey Edwards, a former Republican congressman. Working through Georgetown University’s Law Center in Washington, D.C., the group has come up with a simplified list of judicial canons, including one that bars judicial candidates from promising how they’ll decide cases. Citizens for Independent Courts mailed letters with the canons to judicial candidates in five states — Alabama, Illinois, Michigan, Ohio and Texas — seeking adherents. The response admittedly has been spotty, but next on the agenda is a follow-up educational campaign. Explains the executive director, Virginia Sloan, “We are trying to create an environment where it’s safe for candidates to say, ‘I can’t tell you where I stand on issues that might come before me.’ “ Alabama and Idaho are both facing full-blown controversies over questionnaires that originated with the religious right and seek to commit candidates, if elected, to decide cases on political rather than legal grounds. A sitting Idaho Supreme Court justice was ousted in the May primaries — the first time a challenger has succeeded in that state since 1944 — and the challenger did it after answering a questionnaire in which he stated his opposition to abortion and his belief that the theory of evolution cannot be proved. The incumbent, Cathy Silak, refused to fill out the questionnaire on the grounds that the rules of judicial conduct preclude such public statements. Idaho’s judicial watchdog body, the Judicial Council, suggested just that in a 1998 opinion saying those who come to court are entitled to a judge who is “not an advocate of one side or another or has, in advance, by public statement, prejudged or decided the issue pending before the court.” The challenger, Fourth District Appellate Judge Daniel Eismann, defended the questionnaires by contending that most of the issues addressed had already been adjudicated. In any event, he said, he was expressing his moral philosophy rather than any legal viewpoints. A complaint against Eismann has been filed with the Judicial Council, but recent events in Alabama must be giving council members pause. On Oct. 17, U.S. District Judge Charles Butler Jr. gave the green light to the Alabama chapter of the Christian Coalition to question judicial candidates on controversies such as abortion and gambling and to publish the candidates’ answers. Alabama’s Judicial Inquiry Commission had issued an advisory on Sept. 8, warning that filling out such questionnaires could violate the state’s canons of judicial ethics. A similar threat of discipline came from the state bar. So the coalition and several candidates went to federal court for an injunction against the state-sponsored bodies. Granting the injunction, Judge Butler reasoned that threats of discipline against those who cooperate with the questionnaires infringes on candidates’ First Amendment rights.

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