Do judges have First Amendment rights?

As Jane Ann Morrison reported Saturday the Standing Committee for Judicial Ethics and Election Practices has determined a fundraiser for 11 judicial candidates organized by their campaign consultant violated a judicial canon.

How does this comport with the U.S. Supreme Court ruling that said judicial candidates cannot be deprived of First Amendment speech rights merely for the sake of some vague concept of objectivity on the part of elected judges?

Consultant David Thomas organized a Sept. 1 event for "The Magnificent Eleven” and solicited single checks that would be divided among the candidates.

A divided ethics panel found, “Judicial candidates, however, may not request in such invitations, material or statements that campaign contributions be paid collectively to each and all of the candidates within the group, which is an explicit solicitation of funds for another canidate for public office which is impermissible under Rule4.1(A)(4).”

As Jane Ann noted, the advisory opinion is nonbinding and probably will have to be decided eventually by the Nevada Supreme Court or a federal court. Or has it already been decided?

In 2002 Justice Antonin Scalia wrote the majority opinion in Minnesota Republcian Party v. Suzanne White, chairperson, Minnesota Board of Judicial Standards. Minnesota had an “announce clause” that prohibited candidates for judicial election from announcing their views on disputed legal and political issues.

Since there is a question on the Nov. 2 ballot asking voters to switch from electing judges to appointing judges, here is a what Scalia had to say about the free speech of elected judges:

“There is an obvious tension between the article of Minnesota’s popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.15) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. …  (‘The American Bar Association strongly endorses the merit selection of judges, as opposed to their election … ‘). That opposition may be well taken (it certainly had the support of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. ‘[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.’ … (Renne v. Geary)

“The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”

Who needs the “legitimizing power of the democratic process” when we have judges and lawyers who know better than the mere voters.

Note to voters: If you go into the booth and have no legitimate idea which candidate is better in any race, including judges, skip that race. You don’t have to flip a coin. Let those who did their homework should decide.

     

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