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Speaking Judicially

© Gina D. Gipson

Tis the season for United States Supreme Court decisions. And among the more highly anticipated is a decision addressing judicial speech; or more specifically, judicial political speech.

The state of Minnesota warranted the High Court's attention by adopting new rules in her Code of Judicial Conduct. The state's high court was asked to "clarify the nonpartisan nature of judicial elections." In particular, the Minnesota Board on Judicial Standards wanted to prevent judicial candidates from affiliating themselves with political parties or organizations, and from seeking endorsements from political organizations.

An admitted republican candidate for the state Supreme Court wanted to campaign for the office by informing the voting peeps what kind of jurist he would be; i.e. following a strict constuctionist mantra, as well as criticizing the more 'activist' jurists already on the bench. That pretty much says it all for me. He also wanted to speak at republican-type gatherings and he solicited an endorsement from the republican party. Unfortunately, the Minnesota Code prohibited such specificity in campaigning.

So, Mr. Repub. filed a lawsuit against all interested parties. On one side, the Gopher state, on the other, the republican party. The state prevailed at every level, although at the 8th Circuit Court of Appeals one dissenting judge, C. Arlen Beam, made some very interesting observations. He noted, "this case is about the point at which free speech and association collide directly with an attempt by the Minnesota Supreme Court to manage...the election process in the name of judicial independence of some definition...(t)he people of Minnesota have adopted an elective judiciary - a system which under our Constitution, must come replete with speech and associational rights."

It's a valid point. Yet, striving for an independent and impartial judiciary is seemingly the ultimate goal of any sovereignty. Why should it matter what party a candidate is associated with? Which leads me to a follow up question. Why is it necessary to solicit an endorsement from a political party or organization?

Another viewpoint. The voting public is certainly entitled to - obligated to, in fact - make an informed decision regarding candidates in any kind of election. The avenue to that information is knowledge. How do we obtain that knowledge? Typically from the candidate himself (assuming that he will be frank with us). Voters frequently want to know what they'll be getting. Finally, the very core of the First Amendment is political speech. Remember the oppressive laws prohibiting any criticism of the government i.e. Alien and Sedition Laws? Granted, it feels like we've regressed to those days since September 11, 2001. But I digress.