Kahn PowerPoint Presentation

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The First Amendment and Judicial Campaign Speech
Professor James Alfini Judge Charles Kahn
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The Supreme Court Speaks
Vindication of First Amendment rights?
A better informed electorate?
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OR
Whitewashing the distinction between judges and
other elected representatives?
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Republican Party of Minnesota v. White, 122 S.
Ct. 2528 (U.S. June 27, 2002).
Does the First Amendment permit the Minnesota
Supreme Court to prohibit candidates for judicial
election from announcing their views on disputed
legal or political issues?
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A candidate for a judicial office, including an
incumbent judge, shall not announce his or her
view on disputed legal or political issues.
Minnesota Code of Judicial Conduct, Canon
5(A)(3)(d)(i) (2000).
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Limitations placed upon announce clause by United
States District Court and Eighth Circuit Court of
Appeal.
Republican Party of Minnesota v. Kelly, 247 F. 3d
854 (8th Cir. 2001).
Only disputed issues that are likely to come
before the candidate if elected. Would not
prohibit general discussions of case law and
judicial philosophy.
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There is almost no legal or political issue that
is unlikely to come before a judge of an American
court, state or federal, of general jurisdiction.
Buckley v. Illinois Judicial Inquiry Bd., 997 F.
2d 224 (7th Cir. 1993).
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Scalia
Statement that candidate is a strict
constructionist.
Has little meaningful content for the electorate
unless it is exemplified by application to a
particular issue of construction likely to come
before a court.
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Core of First Amendment Freedoms
Speech about the qualifications of candidates for
public office. 122 S. Ct. at 2534.
Strict scrutiny applies
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Requirements of Strict Scrutiny
Narrowly tailored to serve
Compelling state interest
Proponents of speech restriction have the burden
to satisfy strict scrutiny.
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Petitioners argument on restrictiveness
(narrowly tailored) prong
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A pledge or promise clause would be more narrowly
tailored.
Pledge or Promise clause deals adequately with
the problems of prejudgment and perception of
impartiality.
Pledge or Promise clause provides bright line
that cures both vagueness and over breadth.
(Petitioners brief, 37)
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Recusal or disqualification protects the states
compelling interest in a particular case and is
less restrictive.
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Life tenure would protect judges against voter
retaliation.
Article III Section 1. . . . The judges,
both of the supreme and inferior courts, shall
hold their offices during good behavior . . .
. U.S. Constitution
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The least restrictive means to resolve concerns
about campaign speech is to eliminate campaigns
for judicial office by the adoption of the
executive appointment or merit selection.
(Petitioners brief, 39.)
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Compelling State Interests?
Impartiality of the state judiciary.
NO.
Preserving the appearance of impartiality of the
state judiciary.
NO.
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Alternative Views of Impartiality
Lack of bias for or against either party to the
proceeding.
Lack of preconception in favor of or against a
particular legal view.
Open-mindedness.
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Clause does not restrict speech for or against
particular parties, but rather speech for or
against particular issues.
122 S. Ct. at 2535
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Campaign promises
By long democratic tradition the least
binding form of human commitment.
122 S. Ct. at 2537
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Unanswered Questions
1) Pledge or promise clause? a prohibition
that is not challenged (in White) and on which
(the United States Supreme Court) express(ed) no
view. 122 S. Ct. at 2533.
2) Comment on pending or impending cases?
3) Identification with political parties?
4) Disqualification?
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And maybe the biggest question
Direct fundraising and solicitation of support by
a judicial candidate?
Weaver v. Bonner, ___F. 3d___ (11th Cir., Oct.
18, 2002).
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The aggrieved candidate in White was a Minnesota
Supreme Court candidate, Gregory Wersal.
Query Are the considerations different for
elected supreme court justices than for elected
trial court judges?
For instance, how often are supreme court
justices called on to determine factual issues,
enter monetary judgments, or sentence criminal
defendants?
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If I preside over a trial where the defendant is
convicted by a jury of first degree murder, I
favor the death penalty if it is an available
option.
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Send the liberal judges and their criminal
friendly legal system a clear message I stand
for victims rights and safe streets! We need
to elect judges who believe in victim's rights,
accountability, and justice.
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The civil rights act is a bad law. People need
to rely on their own abilities and not on the
government. I can assure you that I will be very
tough on so-called discrimination claims.
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Do We Now See a Breach Between Ethics and the
Law?

• There is a big difference between
• what you have a right to do and what
• is right to do.
• ---Justice Potter Stewart