Nevada’s Supreme Court justices appear posed to lift a number of restrictions on the free speech rights of judicial candidates, which would be a welcome reset to the default mode of free-flowing political information. After all, voters are the ultimate judges.
The rejection by the state’s voters this past fall of a merit system for appointing judges, which leaves in place voter selection of jurists, as well as several U.S. Supreme Court decisions over the past decade in favor of First Amendment rights in the electoral process, have prompted the justices to consider rewriting the state’s judicial canons and either eliminating or modifying the role of the court’s Standing Commission on Judicial Ethics and Election Practices.
The court’s Canon 4, as currently written, severely restricts judicial candidates’ speech under the premise that public confidence in the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. For example, judges and candidates may not endorse candidates for public office.
The standard has left many candidates afraid to offer any contrast to or criticism of their opponents, even if they’ve been convicted of a crime.
“Voters made the decision to elect judges,” Justice James Hardesty told the Review-Journal. “That being the case, I am concerned about the extent to how our rules limit incumbents and candidates.”
The U.S. Supreme Court stuck down such restrictions on judicial candidates in 2002 in a case out of Minnesota. Justice Antonin Scalia’s majority opinion stated that “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. ‘[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.”
A year ago, Justice Anthony Kennedy reconfirmed the fundamental right of free speech in the case of Citizens United, which declared unconstitutional much of the McCain-Feingold campaign finance reform law.
The last straw on the back of Canon 4 probably came in a 2009 U.S. Supreme Court ruling. The case, out of West Virginia, held a judge who received a huge campaign contribution must recuse himself in a case involving the donor because “there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,’ ” making it a legal rather than an ethical standard. Dissenters in that case objected that the “objective standard” was not adequately explained.
By all means, the court should loose judicial candidates to wage their campaigns in any way they see fit — to be judged solely by the voters. Strike the specific canons and stand down the ethics panel.
The Nevada justices should limit their role to spelling out what the “objective standard” should be for judges, once elected, to recuse when a campaign backer appears before him or her in court. Leave the candidates for judicial office to exercise their First Amendment rights.