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One month into Georgia’s first “Say Anything” judicial campaign season, most candidates still aren’t talking about subjects that were taboo before federal court decisions lifted state speech codes for these races. Only two of eight candidates in contested statewide races have answered a questionnaire posed by the Christian Coalition of Georgia, according to the group’s chairwoman, Sadie Fields. The survey asked candidates to say whether they agreed more with majority or dissenting opinions of U.S. Supreme Court decisions that addressed abortion rights, homosexual conduct and the separation of church and state. Candidates are weighing more recent questionnaires from at least three other interest groups. Georgia Right to Life, which opposes abortion, wants to know whether candidates believe there is a provision in the Georgia Constitution that protects a right to abortion; the Cobb County Healthcare Professionals Political Action Committee asks if candidates have ever sued a physician and seeks their views on tort reform; and the Stonewall Bar Association, a group of gay, lesbian, transgendered and bisexual lawyers, asks whether candidates would discriminate against employees based on sexual orientation or gender identity. The Daily Report also has asked candidates to fill out a questionnaire. The newspaper’s survey is based on one the Judicial Nominating Commission gives to lawyers seeking bench appointments from the governor. TWO ANSWER CHRISTIAN COALITION’S QUERY The two candidates who answered the Christian Coalition’s questions were G. Grant Brantley, a former Cobb County judge who is challenging Presiding Justice Leah Ward Sears for a seat on the Georgia Supreme Court, and Gwinnett County attorney Michael M. Sheffield, who is running for an open seat on the Georgia Court of Appeals. Sears and appeals court candidates W. Ashley Hawkins, Thomas C. Rawlings, Lee T. Wallace, Debra H. Bernes, and Howard N. Mead II have declined to answer the Christian Coalition’s survey. Each has stated that answering the group’s questions could jeopardize his or her impartiality from the bench. The Christian Coalition plans to release its results in early July, about two weeks before the July 20 election, so Brantley and Sheffield’s responses were unavailable. Brantley’s campaign manager said he would honor the group’s request not to release his answers until then. Sheffield could not be reached. But in this new world of judicial races, whether a candidate answers a questionnaire may be just as important as his or her answers. The Stonewall Bar, which will have a candidate forum on June 16, has asked each candidate for a copy of the answers it gave the Christian Coalition. Stonewall members certainly have a stake in one of the cases asked about in the Christian Coalition survey: Lawrence v. Texas, the 2003 U.S. Supreme Court ruling that struck down the criminalizing of homosexual conduct. But Kathleen Womack, Stonewall’s past president, said she’d have problems with candidates who answered the Christian Coalition’s questions. “It’s inappropriate for judicial candidates to say how they’d rule,” she said, explaining that even if a candidate supported the Lawrence decision, saying so in a questionnaire could lead to the recusal of a friendly vote. JUDGE SEARS EXPLAINS REFUSAL Sears refused to answer the Christian Coalition questionnaire, telling Fields in a letter that her personal views were irrelevant because she is required to uphold all of the U.S. Supreme Court decisions cited in the group’s questionnaire. Answering this questionnaire, Sears added, “could open up the floodgates for the judicial campaigns of the future” in which special-interest groups would ask only one question: “If they bring a case, will the judge vote their way or not?” Fields dismissed Sears’ concerns in a response letter, arguing that her group was not interested in personal views but with which judicial philosophy of the competing opinions from the U.S. high court she most agreed. “For instance, you may personally be pro-life; however, your judicial philosophy may be that the U.S. Constitution protects a woman’s right to an abortion,” Fields suggested. Fields reminded Sears of Justice Antonin Scalia’s majority opinion in Republican Party of Minnesota v. White, the 2002 U.S. high court decision striking down a rule barring judicial candidates from announcing their views on disputed issues. “[E]ven if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so,” Scalia wrote, suggesting that a judge whose mind was a blank slate “would be evidence of lack of qualification, not lack of bias.” QUESTIONNAIRE FOES CITE SCALIA Opponents of the questionnaires, such as State Bar of Georgia President William Barwick, have cited Scalia’s recusal from this year’s case about the Pledge of Allegiance as an example of why candidates should avoid opining on cases. Scalia recused after he suggested in a speech that the words “under God” could be removed from the pledge only if Congress did so — not the courts. Rawlings, a juvenile court judge who is one of the appeals court candidates, told Fields in a letter that he would not answer the questions because he feared the public would view his answers as an indication how he might vote on cases dealing with those issues. “While the Supreme Court has stated that judicial candidates have a right to free speech, I do not believe the mere fact I have a right means I should exercise that right when to do so would be ethically improper,” he added. Bernes, a former Cobb prosecutor, echoed Rawlings’ views on not wanting to mislead the public on how she might vote. Hawkins, a Forsyth attorney, wrote in a letter to the Daily Report that signing the questionnaire could disqualify him from cases and simply “backs me into a corner without explanation.” “We do not want to get into electing judges because they agree with one or two hot button issues of the day,” Wallace wrote in an e-mail to the Daily Report. “We can’t afford to have a one-issue judge, because the Court of Appeals is not a one-issue court.” Mead, who was executive counsel during the administration of Gov. Roy E. Barnes, took a more political than legal angle in explaining his policy not to answer any questionnaires. “Answering the questionnaires of some and not others might be construed as endorsing the views of a particular organization,” he wrote in an e-mail. Paul N. Bennecke, Brantley’s campaign manager, made a distinction between the Christian Coalition survey, which Brantley answered, and the Georgia Right to Life survey. He said the Christian Coalition asked about cases that have already been decided by the U.S. high court, while the Georgia Right to Life survey refers “to cases that could come up in the Supreme Court of Georgia,” which could be a problem for Brantley. Bennecke said Brantley was still weighing whether to complete the Georgia Right to Life survey. Daniel C. Becker, the director of the Georgia Right to Life political action committee, echoed arguments from the U.S. Supreme Court decision in urging candidates to answer their questions. “We are entitled to know their prevailing world view,” he said of the candidates. “We are trying to determine their partialities.” Presiding Judge G. Alan Blackburn of the appeals court, who is running an uncontested race for re-election, said he thinks candidates need to find a happy medium in answering the questionnaires. Blackburn, who in 1992 made history by becoming the first challenger in the state to beat an incumbent for the appeals court, said he has no trouble discussing his views on issues. “As a general proposition, I’m pro-life,” he said. But he added, “Because I feel that way does not give me the authority to overrule Roe v. Wade.” Three legal ethics professors contacted by the Daily Report, Jack L. Sammons Jr. of Mercer University, Roy M. Sobelson of Georgia State University, and Stephen Gillers of New York University, voiced problems with the Christian Coalition questionnaire. They said candidates’ answers could improperly commit to a position on an upcoming case or — because there is only a place to mark “agree or disagree” with the high court opinion — inaccurately explain the nuances of a complex decision of law. But James P. Kelly III, the author of the Christian Coalition survey, said the goal was to educate the public, and allowing candidates to write in long answers would “exceed the attention span of the average voter.”

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