Judicial speech police blow the whistle on candidate for being truthful
The truth, the whole truth and nothing but the truth?
Even on the campaign trail?
Judges hold themselves up to be better than us mere mortals who must abide by the Constitution. Why they are so special they have a ballot initiative next Tuesday that basically implies we are too stupid to decide at the ballot box who should be a judge.
This week the state Standing Committee on Judicial Ethics and Election Practices officially slapped the wrist of a candidate for District Court judge for a statement she made on television. Not because she told a falsehood, but because she told the truth, but not the whole truth, in their less than humble opinion.
Judge candidate Joanna Kishner, left, was publicly censured for saying during a joint televised interview with opponent Philip Dabney that Dabney had improperly obtained $250,000 from an elderly client’s estate.
The ruling of the panel conceded Kishner’s statement was not false, saying “there is ample proof that carefully parsed and skillfully delivered the individual statements were either factual or Kishner’s opinions or a combination of both facts and opinion.”
But the panel found her statement was “not ‘scrupulously’ — meaning conscientious and exact; painstaking — fair and accurate and she omitted facts necessary to avoid creating a false implication about Dabney that could mislead voters.”
Never mind that Dabney, right, was sitting there and conceivably could have offered those facts himself. No, the committee said she should have noted that the rules of conduct were violated by Dabney’s law partner, though a violation extends to every member of the same law firm. They said she should “err to accuracy and not the political sound-bite.”
Kishner objected that she was “cut-off” by the moderator, but the omniscient panel members said she should have known she might not have time to explain the nuances.
An explanation accompanying Nevada Judicial Canon 4 states, “Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.”
The whole truth?
Frankly this sounds like an abridgement of the candidate’s First Amendment free speech rights. (Our editorial today says as much.)
Though many states have such canons telling judicial candidates what they can and cannot say, Justice Antonin Scalia in 2002 in the case of the Republican Party of Minnesota v. White ruled such canons may not limit free speech rights.
“Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head,” Scalia wrote. “ ‘[D]ebate on the qualifications of candidates’ is ‘at the core of our electoral process and of the First Amendment freedoms,’ not at the edges. … We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”
Scalia also made specific reference to the American Bar Association’s long and frequent endorsement of so-called merit selection of judges rather than election. He quoted a previous opinion that said, “[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.”
The Constitution denies judges, legislators and executives the power to decide what people may hear from their candidates. It is the purview of the voters to determine whether the candidate is speaking enough truth and whether the candidate displays the character and communication skills to be a judge. Candidates must be given free rein to show just who they are.
By the way, the Review-Journal endorsed Dabney, saying "her legalistic approach fails to exhibit much in the way of real-world experience or common sense." We didn't need an official judicial panel of experts to tell us that.
