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Monday, July 04, 2005

Freedom for Judges

Freedom for Judges

“Freedom's just another word for nothing left to lose.”

-Kris Kristofferson (Janis Joplin)

Judges now have the freedom to say or do anything in political campaigns.

Until recently, judicial candidates could not express positions on issues. Judicial campaigns were polite affairs with each side trying to boost name recognition and a positive image.

Now campaigns will look like professional wrestling matches. People running for judge can say or do anything to get elected.

The decision could be the Mid-Life Crisis Cure for Attorneys. Any lawyer who is tired of practicing law has an odds-on shot to be a judge.

All they have to do is promise interest groups they will rule in their favor every time.

Judicial races could be decided on social issues like abortion, gay marriage and prayer in school. It is an opportunity for groups with rigid ideologies to make sure judges toe the line.

I normally defend free speech at all costs. I am zealous about the First Amendment but I am not sure that “free speech” in judicial campaigns is a good idea.

Judges are supposed to look at the facts of a case and be impartial. How can they do that if they take positions on issues during a political campaign before any cases are heard?

Politics are not supposed to be in the court system. That is why judges are not elected by political parties. Judicial races are non-partisan.

I would hate to see judges running nasty campaigns against each other. I would hate to see a race where one candidate implied that the other was crazy and another candidate implied that the other was gay.

In other words, I would hate to see elections for judges drop to the level of races for United States Senator.

Now that the genie is out of the bottle, everyone needs to play by the new rules.

I saw where Common Cause put out a high minded call for judges to sign “a pledge not to pledge” and agree not to sign any pledge, promise or commitment.”

There is only one kind of judge that should sign that pledge. One that secretly wants to lose his or her seat.

If one candidate signs the pledge and the other does not, the non-signor has a tremendous advantage. Even if both sign, one of the sides could break during the campaign.

It would be like watching a professional wrestling match where one wrestler agrees to use the scientific method and the other brings a sledgehammer into the ring.

My bet would go on the guy with the sledgehammer.

We saw a taste of the unequal playing field in the 2004 Supreme Court race. Justice Janet Stumbo (a disclaimer: I donated to Stumbo’s campaign before becoming a journalist) had been on the court and ran the kind of respectable campaign that Justices for the Supreme Court had run in the past.

Her opponent Will Scott, criticized Stumbo’s decisions. In commercials that reminded me of the Willie Horton ads, Scott hammered on Stumbo while Stumbo avoided discussion of issues as she had been required to do in the past.

Will Scott is now Justice Will Scott. Stumbo is practicing law.

There are ways for judges to protect themselves. One is to raise money and campaign hard in the years before an election. Many judges are not aggressive campaigners but will have to be.

The second would be to go after opponents who suck up to interest groups. The public wants their judges to act like judges and not sell out to groups with defined agendas. You will see judges run negative campaigns against opponents who are too cozy with special interests.

If a well funded judge runs an aggressive campaign, just like legislators and members of Congress do, incumbents should be able to stay in office. They will need to change their campaign tactics to stay up with the times.

Like Kris and Janis said, freedom is just another word for nothing left to lose. Candidates for judge have nothing to lose. If they tell the right groups what they want to hear, they might wind up wearing a robe and sitting on the bench.

If we are not careful, freedom to speak may cause our justice system to lose a lot.

Don McNay is President of McNay Settlement Group and thinks judges need the freedom to be fair and unbiased. You can write to him at or read other things he has written at