Judicial candidates can voice opinions for the first time

Andrew Pritchard

For the first time since 1974, Minnesota judicial candidates are able to speak their minds during their campaigns.

That permission was granted by a 5-4 U.S. Supreme Court ruling at the end of June that struck down a Minnesota election law prohibiting judgeship candidates from expressing views on controversial legal or political topics.

Judicial candidate Jack Baker can now campaign without restraint on what he calls judges’ unlawful involvement with the Minnesota News Council.

“That is the issue in the campaign, and that is the only issue in my campaign. Everything else is a nonissue as far as I’m concerned,” he said.

In this year’s highest-profile judicial race, Baker, an attorney and engineer, is running for the Minnesota Supreme Court seat currently held by Justice Paul Anderson, who is seeking re-election.

Anderson’s campaign could not be reached for comment Thursday, and his campaign Web site does not state his positions on legal or political issues.

University law professor Dale Carpenter teaches constitutional law and said the ruling allows discussion of previously off-limit issues.

“Practically speaking, it means that candidates can talk about issues that may come before them as judges,” Carpenter said.

However, he said the state could still prohibit judges from declaring how they would rule on specific legal questions.

Golden Valley lawyer Greg Wersal, who lost his 1996 bid against current Minnesota Supreme Court Justice Alan Page, claimed the election law violated the First Amendment’s free speech guarantee.

“You have to have candidates who can state their views on issues or else you just have meaningless elections,” he told The Associated Press in June. “People have no idea who these people are or why they should vote for them.”

Carpenter also said that if judges are going to be elected, they should be able to talk about the issues.

“If we’re going to elect judges, those elections should be meaningful, and to be meaningful, we have to know how the candidates feel,” he said.

However, Carpenter said he believes Minnesota judges should be appointed, perhaps subject to recall or retention elections.

“Election contests, I think, corrode the judicial decision-making process,” he said.

Before the court

Wersal’s First Amendment claim was supported by the American Civil Liberties Union, the American Center for Law and Justice, the U.S. Chamber of Commerce and other groups in friend of the court briefs.

Carpenter said the current Supreme Court is receptive to free speech arguments.

“This court has become increasingly libertarian on the First Amendment,” he said.

The state argued it needed to protect the integrity of the judicial system from politicking and was supported by the American Bar Association, several legal groups and eight other states with similar laws.

“When a case arises that turns on a legal issue on which the judge Ö had taken a particular stand, the party taking the opposite stand (in court) is likely to lose,” Justice Antonin Scalia wrote for the majority. “But not because of any bias against that party, or favoritism toward the other party. Any party taking that position is just as likely to lose.”

The majority found the Minnesota law did not appropriately serve the state’s goal of nonpolitical judges.

“In Minnesota, a candidate for judicial office may not say ‘I think it is constitutional for the legislature to prohibit same-sex marriages,’ ” Scalia wrote. “He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected.”

Justice Sandra Day O’Connor, though voting with the majority, wrote separately to say she was concerned by the practice of electing judges at all, and Justice John Paul Stevens wrote for the dissenting justices that the majority ignored judges’ unique role in government.

“In a democracy, issues of policy are properly decided by majority vote Ö but in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity,” he wrote.