Sunday, October 02, 2005
Law - Still more on running for judge in Kentucky
A 2/5/05 ILB entry, titled "More on running for judge in Kentucky," begins: "Last fall we had a number of stories on conservative groups' national attack against limits (generally via court rules) on judicial candidates stating their positions on topics that might come before them on the bench."
Today the Louisville Courier Journal has a lengthy story headlined: "Judge candidates can state views: New rule may be challenged as vague." Some quotes:
With all but two of Kentucky's 265 judgeships up for election next year, the state Supreme Court has enacted a new rule giving judicial candidates more leeway to announce their views on controversial issues like gay marriage and abortion rights.
But the lawyer for a conservative group that won a federal court ruling throwing out the old rule as unconstitutional says the new one is too vague and might be struck down.
"The question is, will there be compliance or defiance?" asked James Bopp Jr., the attorney for the Family Foundation of Kentucky, which successfully argued that the old rule violated the First Amendment right to free speech.
Bopp told about 100 lawyers and judges in Louisville last week during a judicial forum that voters have a right to know if a judge shares their values. "The personal views of judges are important," he said.
Defenders of restrictions on judicial speech say that they are essential to preserve the impartiality of the courts. Without them, they say, judicial races will turn into gutter campaigns. * * *
The old rule barred judicial candidates from making statements that "commit or appear to commit" to positions on cases they likely would hear. The new rule says judicial candidates must not "intentionally or recklessly" make a statement that could be perceived "by a reasonable person" as committing them to rule a certain way on an issue they could hear.
Lawson said the new rule gives judicial candidates more flexibility because it requires proof that violations are intentional or reckless, and because it eliminated the language that allowed candidates to be sanctioned if they only "appeared" to commit themselves on an issue.
Restrictions on judicial candidates have come under attack in dozens of states since the U.S. Supreme Court decided in a 2002 Minnesota case that judicial candidates have a free-speech right to announce their views as long as they don't pledge to vote a certain way on a particular case. Bopp won that case.
The debate recently reverberated in the U.S. Senate hearings for chief justice nominee John Roberts, who was attacked by liberals for failing to disclose his views on abortion and other issues; Roberts said he didn't want to be seen as prejudging cases. (He was confirmed last week and joined the court.)
But conservatives have pushed for rules that ease restrictions on judicial candidates so that voters will know more about their views. In a Louisville Bar Association forum last week, Bopp said that will help voters remove "liberal" judges who "make law," rather than interpret the constitution.