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"THE USE OF CHEMICAL WARFARE IS AUTHORIZED" America's secret war plans: "The military purpose is to overthrow the present existing Federal Government of Mexico." Floyd Rudmin uncovers the sick dreams of America's generals. Alito says, Constitution okays Bush to set up prison camps here and torture US citizens. Dems praise his "even demeanor" and shirk the filibuster. Cockburn and St Clair on the Alito hearings and the Democrats' collapse. ... CounterPunch Online is read by millions of viewers each month! But remember, we are funded solely by the subscribers to the print edition of CounterPunch. Please support this website by buying a subscription to our newsletter, which contains fresh material you won't find anywhere else, or by making a donation for the online edition. Remember contributions are tax-deductible. Click here to make a donation. If you find our site useful please: Subscribe Now! |
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January 25, 2006 Joan Roelofs
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January 25, 2006 Alito and Roberts' Self-Gag Rule is a PhonySenate Filibuster More Urgent Than EverBy LAWRENCE R. VELVEL I have not been a constitutional lawyer for nearly 30 years, and therefore do not regularly read Supreme Court opinions. Imagine my shock, however, upon reading a statement in the New York Times saying that in 2002 the Supreme Court had ruled it unconstitutional to bar a candidate running for a judicial office from stating his views on a legal question. I looked up the case (Republican Party of Minnesota v. White) and, sure enough, that is exactly what the Supreme Court ruled. You cannot constitutionally bar a candidate from stating his views on legal issues that may come before the court to which he aspires. The opinion of the Court was written by Scalia, and joined by conservative justices like Rehnquist and Thomas (as well as by O'Connor and Kennedy). The liberals voted the other way and O'Connor and Kennedy also wrote concurring opinions. I am floored. Roberts and Alito --conservative nominees of a conservative President-kept saying, as did all their conservative supporters, that they could not answer questions that might come before the Court, but the conservative justices of the Supreme Court have ruled that a nominee can state his position on questions that may come before the court he aspires to, and that ruling was in fact the judgment of the high Court, notwithstanding the liberals' opposition? How were the Democrats and their many staff members and minions, including leading constitutional lawyers, so incompetent that they never mentioned this Supreme Court ruling when Roberts and Alito were claiming they were barred from answering questions that might come before the Supreme Court? And are we supposed to believe that Roberts and Alito --both regarded as major fonts of Supreme Court knowledge--did not know of the 2002 case when they said they were barred from making comments? There are many ways, as even a quick reading of the case shows, to try to distinguish between the 2002 case and the Roberts and Alito matters. There is no time to discuss them here, and I have therefore appended the opinion for anyone who wants to read it. At the end of the day, however, regardless of attempted distinctions, the critical fact is that it is now constitutional law that a candidate is not barred, and cannot be barred, from saying what he thinks about a legal question that he may have to address as a judge. I would also say--it is either an obnoxious boast or a confession of intellectual bankruptcy, depending on how you look at it-that a number of the arguments made by the majority in the 2002 case-by Scalia and other reactionaries, no less-are identical to ones made on a n umb er of occasions by this writer. As said here before, the Alito nomination should be filibustered. This is only the more true because the Supreme Court--via the conservatives, no less--has rejected the "I cannot and will not talk" claim used by Roberts and Alito to avoid talking, and used for this purpose because Roberts and Alito, Bush, and Bush's henchmen all knew the two nominees would be overwhelmingly rejected if they did talk, if they did truthfully give their opinions about legal questions they instead refused to discuss. Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu. *This essay represents the personal views of Lawrence R. Velvel. REPUBLICAN PARTY OF MINNESOTA et al. v. WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, et al. certiorari to the united states court of appeals for the eighth circuit
No. 01-521. Argued March 26, 2002--Decided June 27, 2002 The Minnesota Supreme Court has adopted a canon of judicial conduct that prohibits a "candidate for a judicial office" from "announc[ing] his or her views on disputed legal or political issues" (hereinafter announce clause). While running for associate justice of that court, petitioner Gregory Wersal (and others) filed this suit seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. The District Court granted respondent officials summary judgment, and the Eighth Circuit affirmed.
Held: The announce clause violates the First Amendment. Pp. 4-22. (a) The record demonstrates that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions--and in the latter context as well, if he expresses the view that he is not bound by stare decisis. Pp. 4-8. (b) The announce clause both prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms--speech about the qualifications of candidates for public office. The Eighth Circuit concluded, and the parties do not dispute, that the proper test to be applied to determine the constitutionality of such a restriction is strict scrutiny, under which respondents have the burden to prove that the clause is (1) narrowly tailored, to serve (2) a compelling state interest. E.g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222. That court found that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the state judiciary's impartiality and preserving the appearance of that impartiality. Pp. 8-9. (c) Under any definition of "impartiality," the announce clause fails strict scrutiny. First, it is plain that the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the word, i.e., as a lack of bias for or against either party to the proceeding. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. Second, although "impartiality" in the sense of a lack of preconception in favor of or against a particular legal view may well be an interest served by the announce clause, pursuing this objective is not a compelling state interest, since it is virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law, see Laird v. Tatum, 409 U. S. 824, 835. Third, the Court need not decide whether achieving "impartiality" (or its appearance) in the sense of openmindedness is a compelling state interest because, as a means of pursuing this interest, the announce clause is so woefully underinclusive that the Court does not believe it was adopted for that purpose. See, e.g., City of Ladue v. Gilleo, 512 U. S. 43, 52-53. Respondents have not carried the burden imposed by strict scrutiny of establishing that statements made during an election campaign are uniquely destructive of openmindedness. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841. Pp. 9-18.
(d) A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional, see McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 375-377. However, the practice of prohibiting speech by judicial candidates is neither ancient nor universal. The Court knows of no such prohibitions throughout the 19th and the first quarter of the 20th century, and they are still not universally adopted. This does not compare well with the traditions deemed worthy of attention in, e.g., Burson v. Freeman, 504 U. S. 191, 205-206. Pp. 19-21.
(e) There is an obvious tension between Minnesota's Constitution, which requires judicial elections, and the announce clause, which places most subjects of interest to the voters off limits. The First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what the elections are about. See, e.g., Renne v. Geary, 501 U. S. 312, 349. Pp. 21-22.
247 F. 3d 854, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. O'Connor, J., and Kennedy, J., filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. ------------------------------------------------------------------------
REPUBLICAN PARTY OF MINNESOTA,
et al.,
PETI-TIONERS v.
SUZANNE WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL
on writ of certiorari to the united states court of appeals for the eighth circuit
[June 27, 2002] ------------------------------------------------------------------------
Justice Scalia delivered the opinion of the Court.
The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.
I Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, §7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2, 1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a "candidate for a judicial office, including an incumbent judge," shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the "announce clause." Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002). Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional Conduct 8.2(b) (2002) ("A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct"). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002).
In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board,1 investigates and prosecutes ethical violations of lawyer candidates for judicial office. The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that, although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make.2
Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents,3 seeking, inter alia, a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. 247 F. 3d 854 (2001). We granted certiorari. 534 U. S. 1054 (2001).
II Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002).
We know that "announc[ing] . . . views" on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate's mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called "pledges or promises" clause, which separately prohibits judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," ibid.--a prohibition that is not challenged here and on which we express no view.
There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that "[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense." App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking "[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" Ibid. It criticized a decision striking down a state law restricting welfare benefits, asserting that "[i]t's the Legislature which should set our spending policies." Ibid. And it criticized a decision requiring public financing of abortions for poor women as "unprecedented" and a "pro-abortion stance." Id., at 38. Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board's opinion in upholding the announce clause, 247 F. 3d, at 882, and the Minnesota Supreme Court recently embraced the Eighth Circuit's interpretation, In re Code of Judicial Conduct, 639 N. W. 2d 55 (2002).
There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. 63 F. Supp. 2d, at 986. The Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. 247 F. 3d, at 881-882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit's opinion. In re Code of Judicial Conduct, supra.
It seems to us, however, that--like the text of the announce clause itself--these limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34.4 Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the "disputed legal or political issues" raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, "[t]here 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, 229 (CA7 1993). Third, construing the clause to allow "general" discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a " `strict constructionist.' " Tr. of Oral Arg. 29. But that, like most other philosophical generalities, 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--for example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Id., at 43. Without such application to real-life issues, all candidates can claim to be "strict constructionists" with equal (and unhelpful) plausibility.
In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions--and in the latter context as well, if he expresses the view that he is not bound by stare decisis.5
Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate's "character," "education," |
