Judicial speech codes

Posted: Jan 02, 2002 12:00 AM
WASHINGTON--Curiouser and curiouser, said Alice, who was in Wonderland, although she could have been in Minnesota. The misguided Supreme Court of that state will soon answer to the U.S. Supreme Court, trying to defend the indefensible--provisions in the state's Code of Judicial Conduct, promulgated by the state court, that push campaign regulation, meaning the official supervision of political speech, to new levels of offensiveness. Like a sizable majority of states, Minnesota elects judges, which is a bad idea, but historically understandable. The state constitution mandating this was adopted on the eve of the Civil War, when abolitionist feelings were running high and so was resentment of the judicial highhandedness that produced the 1857 Dred Scott decision. Be that as it may, Minnesota says there shall be judicial elections, but that candidates for judicial office are forbidden to say anything pertinent--and, by the way, so are candidates' family members. Really. The Code contains various provisions that are constitutionally dubious. The ``announce'' clause prohibits judicial candidates from announcing ``their views on disputed legal or political issues.'' The ``endorsement'' clause forbids candidates ``to seek, accept or use'' an endorsement from any political party organization. The ``attend or speak'' clauses prohibit candidates from ``attending political gatherings'' or speaking at political party gatherings. However, they can attend and speak at meetings of other interests--the NAACP, the NRA, the Trial Lawyers Association, etc. Go figure. What, you may wonder, is the point of conducting elections if candidates are forbidden to say anything that might enable voters to make informed choices? Minnesota's Republican Party wonders, and so do such ancillary groups as--isn't this an interesting country?--the Indian Asian American Republicans of Minnesota, and Muslim Republicans of Minnesota. They all have enlisted the James Madison Center for Free Speech, and the U.S. Supreme Court will hear their argument on behalf of Gregory Wersal. Minnesota's judicial elections are conducted with ``nonpartisan'' ballots: candidates do not run with party designations, which is a bad idea compounded. If you are going to have elections, why forbid politicking? In any case, when in 1996 Wersal sought election to Minnesota's Supreme Court, he attended Republican gatherings and--scandal compounded--he said informative things, such as that he favors strict judicial construction and is critical of certain Minnesota Supreme Court rulings. This violated the ``announce'' clause. Threatened with an ethics complaint, which threatened his livelihood as a lawyer, he dropped his candidacy. But in January 1997 he announced for the 1998 campaign. In December 1997 Minnesota's Supreme Court made matters worse by adding the ``endorsement'' and the ``attend or speak'' clauses and requiring judicial candidates to encourage family members to adhere to the standards of conduct for candidates, who are forbidden to knowingly permit any person ``to do for the candidate what the candidate is prohibited from doing.'' Wersal lost in the primary, but ran again in 2000 when, although he did not seek it, he received the Republican Party endorsement. When his opponent attacked him for this, Wersal sought permission from the board that enforces the Code to respond to this attack, which would require him to mention the endorsement. Permission denied. Such is life under speech police empowered to enforce someone's idea of political hygiene. Minnesota defenders of these restrictions on political speech and association say they ``guarantee the independence'' of the judiciary ``from political, economic and social pressure''--whatever ``social pressure'' might include. So, Minnesota is to have elections designed to guarantee the winners' ``independence'' from the electorate. This is pure McCainism--John McCain's vision of campaign ``reforms'' that will produce a faux politics without the ``appearance'' of the ``corruption'' of actual politics. But note this: The justices of the state Supreme Court have created a speech code that controls the conduct of candidates for that court. Does that not trouble Minnesota's fine-tuners of ``appearances''? When the dust settles from the terrorism crisis, attention should be paid to the perversely selective concern some people have shown these past few months about civil liberties. The same sort of people who insist that unlawful noncitizen belligerents be accorded the full panoply of legal protections accorded to Americans accused of burglary are simultaneously eager to abridge Americans' core First Amendment right, that of unrestricted political speech. Curiouser and curiouser. Meanwhile, another year has passed and McCain-Feingold has not. The House version of that bill, which would further empower the federal government to ration political speech, is bottled up in committee, so ``reformers'' are in the slough of despond, not to mention high dudgeon. Rejoice.