The current judicial political speech controversy is centering not only on the lawsuits filed by candidates such as Marcus Carey in Northern Kentucky, but also on the questionaires submitted to judicial candidates.
The questionaires were typically sent out to the candidates with many refusing to respond in reliance upon the judicial campaign speech rules.
Well, the "new" judicial political reality in Kentucky did not begin here but north of us, and Hoosier James Bopp who shepherded the Minnesota Rep. Party v. White judicial campaign speech case up through the United States Supreme Court. The Bluegrass version soon followed in October 2004 when U.S. District Court Judge Danny Reeves in federal district court ruled the state Judicial Conduct Commission and Kentucky Bar Association cannot punish a candidate for making statements that appear to commit that candidate to a certain stance or issue. Judicial candidates should be allowed to express opinions in campaign speeches without fear of being punished by Kentucky's restrictions on campaign speech, a judge ruled.
The repercussions of those decisions provided the impetus last year for our initial posting, The Erosion of Our Juries and Judiciary, on July 2, 2005, and later prompted my label of the NEW judicial political reality. Just click on "Judicial Politics" category on this blog anytime you care to be reminded at what White hath wrought when the floodgates of speech were opened.
With that background in mind, take a look at the Indiana Law Blog's posting Courts - "Judicial Surveys Vex the Bench" with its link to the National Law Journal story by Marica Coyle. The ILB has had a great number of entries on this issue - here is a list. In addition, see this entry from August 23rd titled "Chief Justices Sound Alarm on Judicial Elections."
We have also monitored the fallout by setting up a separate category of Judicial Politics.
I am not going to repeat the content of the ILB and NLJ stories. Check them out.
But, I will add my own two-cents on the candidate's minds when facing this issue since I came face to face with the questionnaires and Supreme Court decision when I ran for judicial office four years ago.
It's a hard political choice to make when it comes to answering those questions. Taking a stand on such issues that are behind those questions means winning and losing votes. Hiding behind the judicial non-committal response is the higher road, does not openly offend any group, allows your personal views to remain private, and avoid controversey. Fortunately for me, that Rubicon was not crossed since the Kentucky rule forbade it, but in light of the Minnesota decision I considered it.
Judicial campaigns are about getting money, getting votes, and getting elected.
No one wants to get in trouble since the loser still has to live and work in his or her campaign region.
Right now we have campaign controversies swirling around several races already over the hot button issues addressed by many of the questionaires - gays, guns, God and the Ten Commandments, etc.. Marcus Carey in his campaign has filed suit in federal court over issues of campaign speech, partisan politics and finances. Rick Johnson and Bill Cunningham brought up the hot button issues of where they stood during stump speeches at Fancy Farm.
With publicly elected judges, the public has the right to ask anything it darn well pleases, and the candidates have the right not to answer or say a darn word about anything the voter wants to hear. The decision will end up in the ballot box.
If you don't want these kind of campaigns, then change the constitution and appoint the judiciary in a calm, reflective, and exhaustive process with public discussion. Committees surface names, governor nominates, legislative committee screens, and the legislature votes. At the end of their term, the judges are subject to recall elections if they are just that bad.
This process worked fine for the likes of Brandeis, Harlan, Stone, Rutledge and others from Kentucky who got to sit on our nation's highest court. Might be good enough here, too.
Other links involving this topic include Judicial Questionnaires [Divorce Law Journal].
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