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Monday, March 27, 2006

Courts - "If you think judges should be above petty politics, try not to watch them campaign this year."

"If you think judges should be above petty politics, try not to watch them campaign this year" is the subheading to a story in Governing this month. The main title is "Robe Warriors." Some quotes from this lengthy and significant article:

In a staggeringly short time, state judicial elections across the country have become vastly more competitive. The influx of special-interest money and influence, coupled with court decisions and legislation that gives judicial candidates more latitude to campaign, has drastically changed the ground rules. Judicial candidates, once perceived to be above the fray of partisan campaign issues, are no longer insulated from them. There’s no question that this grants them greater freedom of speech and allows for a judicial bench that reflects the opinions of a state’s citizens. But there are also signs that it is threatening the independence and impartiality of the state judiciary in America.

This election year will be a watershed for state courts. Nearly 80 Supreme Court seats will be on the ballot in 30 states, with hundreds of other judicial contests further down the ballot. The perennial battlefields of Ohio, Michigan and Alabama will attract a lot of attention. So may Tennessee and South Dakota, in which every sitting Supreme Court justice is facing a vote. But an even better state to watch may be Kentucky, where a recent constitutional change has dictated that all but two of the state’s 274 judges — circuit, district, appellate and supreme — must face a vote this year. As one court watcher puts it, “Kentucky is going to be as close to a free-for-all as you can imagine.” * * *

[V]oters will be able to find out more about the views of judicial candidates than they ever have before. That’s an important — and positive — evolution, says James Bopp Jr., a First Amendment lawyer who successfully argued against restrictive canons in the 2002 Supreme Court case. “Citizens will be more informed about their judicial philosophy, and the judges will be held accountable by the people.” Bopp, who also has argued successfully against the canons in other states, says the changes will help the candidates themselves. “They will now be able to fully participate in their elections,” he argues. “Before, they had to stand there and be silent and hear special-interest groups talk about them. Candidates can be criticized fairly, and they can be criticized unfairly. They should be able to respond.”

But critics say that lifting restrictions on judicial campaigning only leads to more special-interest money and more polarized judicial politics. Once candidates are allowed to voice their opinions, interest groups will do everything in their power to make sure they do. “Candidates are now being pressured by interest groups to take sides and engage in the kind of politicking you’d expect of a political race,” says Jesse Rutledge of Justice at Stake. “There’s this systemic pressure that just keeps growing and growing. It becomes a race to the bottom.”

That’s the fear some have in Kentucky. This past October, the state Supreme Court there relaxed its judicial campaign canons, in response to a lawsuit brought by the Family Foundation of Kentucky, represented by James Bopp. The result, says Justice Johnstone, is that the elections this year will be more caustic and more expensive. “Before,” he says, “there wasn’t very much special-interest participation because you couldn’t get your money’s worth. Judges couldn’t say whether they supported your position or not. Now, we’re going to see a great influx of special-interest participation.”

Recall that Indiana has a case pending, Right to Life v. Shepard, before Judge Sharp in the the ND Indiana. See this ILB entry from Nov. 9, 2005 for more. See also this entry from Jan. 4, 2006.

Posted by Marcia Oddi on March 27, 2006 07:57 AM
Posted to Courts in general