No more standing mute 

New rules will let judges address issues. Whether they want to or not.


Arkansas and other states have for many years enforced rules restricting the speech and actions of judges and judicial candidates, on the theory that judges and judicial candidates should not only be impartial, they should appear to be impartial. The rules have been interpreted to mean that judges and judicial candidates must remain silent on almost everything except their own qualifications to serve. Though seeking elective office, and thus “politicians” by definition, they don't talk about issues and they don't talk about opponents. It makes for dull judicial races.

But the old system is crashing, as federal and state courts are ruling that these restrictions on judicial speech violate the First Amendment of the United States Constitution. Newer, more free-wheeling rules will apply to judicial races. These should make for better, or at least more interesting, politics. They may make for worse law.

This is a development feared but not totally unexpected by many lawyers and judges. One prominent Arkansas judge says that he's always been in favor of the restrictions on judicial speech, and he's always known that if the rules ever went before the U.S. Supreme Court, they'd be declared unconstitutional. His judgment has been vindicated, but he's not happy about it. In the case of Republican Party of Minnesota v. White, the Supreme Court made such a finding, by a 5-4 vote. State regulatory bodies are making similar findings, in conformity with the White decision. The Arkansas Judicial Discipline and Disability Commission cited White in its recent dismissal of charges against Judge Wendell Griffen of the Arkansas Court of Appeals.

The American Bar Association views dimly what it calls the increased politicization of American courts, a trend that has been under way for some time. An ABA committee concluded that “the White case is likely to politicize judicial elections as never before. Judicial candidates will be competing for votes on the basis of their positions on issues they will later decide as judges. When voters ask for the candidates' views on politically explosive issues of the day, the candidates must either answer, or decline and hazard a negative reaction from the electorate at the ballot box. And the risk that judges will be selected not because they are best qualified to impartially uphold the law but because they will best represent their ‘constituents'' views from the bench becomes increasingly real.

“Underlying the majority's opinion in White is a relatively simple and straightforward message: A state that opts to select its judges by election may not, consistent with the First Amendment, deny judicial candidates the opportunity to discuss what the election is about, and the election is in no small part about the issues those candidates will decide as judges. If a state is concerned that judicial candidates will compromise their impartiality when they take positions on issues that may come before them later as judges, it has an obvious solution, as emphasized by Justice Sandra Day O'Connor in her concurring opinion. It may select judges by means other than election.”

That solution may be obvious, but it's not easy. Arkansas elects its judges, as do most states, and a constitutional amendment would be needed to allow for some sort of process in which supposedly expert and impartial appointees would select judges. It's been tried before, and the people weren't buying. It could be tried again, but next year and for the foreseeable future, Arkansas will elect its judges.



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