03/31/02

Six weeks before a primary election for legislators and judges here in Cuyahoga County, the U.S. Supreme Court has taken up a case from Minnesota that could change how judicial races are run nationwide.

They might become real races.

In Minnesota, as in Ohio and most other states, judicial fiat prohibits candidates for judgeships from taking public positions on issues likely to arise in court. That leaves them free to discuss their name, bar ranking and number of years in what kind of law practice. This bar to actually sizing up members of the bar who would sit on the bench supposedly protects the integrity of the judiciary.

In oral arguments last week, Justice Sandra Day O'Connor debunked that notion. Incumbent judges are free to make known their views on any number of controversial issues in official opinions supporting their rulings, she noted. Gagging challengers on the same subjects is "kind of an odd system, designed to - what? - maintain incumbent judges?"

Stephen Gillers, vice dean and professor at New York University School of Law takes a more practical whack. "Others remain free to tell voters what a candidate believes," he wrote in the New York Times. ". . . Clever packaging, like a television commercial that shows a prison door banging decisively shut, can signal a candidate's main themes." Or try to smear them: Just ask Ohio Supreme Court Justice Alice Robie Resnick, target of an unsuccessful TV campaign funded by pro-business groups.

The Minnesota Supreme Court has amended its gag rule as the challenge to it has landed in Washington. Initially it prohibited candidates from announcing their views "on disputed legal or political issues." After tweaking by a federal appeals court, the rule now prohibits comment only on issues candidates will probably face in actual cases that come before them.

For candidates, that still leaves a fine line between telegraphing how they would rule in a particular case, which they should not, and discussing their judicial philosophy and political ideology, which they should. Otherwise, voters elect a pig in a poke.

"Maybe," Justice Antonin Scalia observed, "you shouldn't have judicial elections." We see no maybe about it, but a ballot issue that would have brought an appointive system to Ohio lost by a landslide more than a decade ago.

Regardless, Scalia continued, "I don't see the interest in keeping the electorate from being informed."

Sure enough, there isn't one.