The U.S. Supreme Court took the gag off judicial candidates yesterday in a landmark free-speech ruling bound to have repercussions for Ohio's already bitterly contested judicial races.

Ruling 5-4 in a Minnesota case, the court struck down limits on what judicial candidates can tell voters, a decision that will profoundly change the way Ohio candidates for judge conduct their campaigns.

"It's a whole new world,'' declared former Ohio Deputy Attorney General Mark R. Weaver, a Republican political consultant who has run eight campaigns for Ohio Supreme Court since 1990.

"This ruling will change the nature of elections in every state where judges are elected,'' he said. "Judicial candidates will begin to campaign the way nonjudicial candidates have campaigned.''

Ohio Supreme Court Justice Thomas J. Moyer agreed: "I would think there will be candidates who will now state their positions on issues.''

Moyer said he will ask the Ohio court's six other justices to delete from the state judicial code of conduct a prohibition against a judicial candidate making "statements that commit or appear to commit the judge or judicial candidate with respect to cases or controversies that are likely to come before the court.''

Moyer said the court probably will act quickly "to guide candidates'' running for judgeships on Nov. 5.

While Ohio's constraints are worded differently from Minnesota's, the U.S. Supreme Court's ruling will affect more than three dozen states that elect judges and restrict speech by judicial candidates.

The government never has been permitted "to prohibit candidates from communicating relevant information to voters during an election,'' Justice Antonin Scalia wrote in a majority opinion declaring the Minnesota law an unconstitutional gag on First Amendment rights.

In a concurring opinion, Justice Anthony M. Kennedy said that "Deciding the relevance of candidate speech is the right of the voters, not the state. The state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech.''

The case sprang from a legal challenge by an unsuccessful Minnesota Supreme Court candidate, joined in his fight by the Minnesota Republican Party.

Ohio is one of 33 states with high- court races on the ballot this fall.

Yesterday's ruling, experts agreed, will change the nature of those races. Judicial candidates now will be permitted to state their positions on such controversial issues as abortion, capital punishment and gun control, as long as they do not make pledges on how they will vote in cases.

"They can't cross over the line of committing themselves in a direct way by promising to vote a certain way in a particular case,'' said Erik S. Jaffe, a Washington attorney who filed a "friend of the court'' brief on behalf of two judges opposing the Minnesota restrictions.

Roy Schotland, professor of law at Georgetown University in Washington, predicted the decision would spawn more litigation deriving from disputes about whether a judicial candidatecrossed the line by making a veiled promise.

"Nobody's going to say, 'I promise,' '' Schotland said. "But if a candidate says, 'I'm going to be tough on drunk drivers,' then comes the question of whether he's made a promise.''

If a judicial candidate states a position on an issue such as abortion, voters "will assume that's how the judge will vote in (an abortion) case before him,'' Moyer said. "There's an implication that if you vote for me, you can count on me to vote a certain way.''

Jaffe, however, called the ruling a victory for voters, who often know little about judicial candidates because of rules preventing them from discussing much more than their legal experience.

"If you think elections are a good thing to begin with -- and in the context for judges, that's an open question -- it can only be a good thing that you know more about your judge.''

Said Weaver: "All too often, (voters) vote for the person whose name they recognize. This ruling will let voters consider the core beliefs of judicial candidates, and that's good news.''

Gerald W. VandeWalle, chief justice of the North Dakota Supreme Court, said judicial candidates will lose any "appearance of impartiality'' if they express positions on issues.

"I think it permits a candidate to pander to whatever popular position will get him elected,'' VandeWalle said.

He also said that once a judge's philosophical positions are fleshed out, special-interest groups will be even more likely to bypass legislative elections and support like-minded judges who effectively could legislate from the bench.

"That's already being done and I think it will increase,'' VandeWalle said. "We've all seen cases come before us when they couldn't get the legislature to do what they want.''

Joining Kennedy and Scalia in the majority were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas.

Dissenting were Justices Stephen Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

In the main dissent, Stevens wrote, "The judicial reputation for impartiality and open-mindedness is compromised by electioneering that emphasizes the candidate's personal predilections rather than his qualifications for judicial office.''

And Ginsburg took the rare step of reading a statement critical of the majority decision from the bench.

"Election-driven commitments to certain positions, however commonplace in races for the political branches, are incompatible with the judicial role,'' she said.

Scalia dismissed that fear, saying a judge's responsibility is to render a fair judgment based on the law, not to hide his own views on an issue.

"A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason,'' Scalia wrote. "For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.''

 Printer-friendly version     E-mail this story

Today's Top Stories