How much should judicial candidates talk?

With the hearings on The Roberts Nomination in progress, and with an Oregon Supreme Court race on the horizon as the result of Chief Justice Carson's retirement, one topic on the minds of constitutional scholars, senators, and journalists, is what, if anything, a judicial candidate should reveal about his or her views on legal, social, and political issues that may come before the court on for which he or she is a candidate.  Roberts has already revealed this much in his written responses to the Senate Judiciary questions.  Should he tell more?  Or, given that the judicial role is to decide specific cases before the court, does it conflict with that role to compel a judicial candidate to resolve hypothetical cases in the confirmation process?  Should a candidate for an elected judicial position be more forthcoming than one for an unelected position?  Is there a tension between ethical constraints on judicial candidates' speech and those candidates speech rights under the state and federal constitutions?  I'm sure the debate will continue here at OrConLaw over the next weeks and months.

Comments

[Ed Trompke]

This issue can be pretty controversial. But, controversy can be a good learning tool. Before the 1920s, federal Supreme Court Justices did not appear before the Senate personally. So, it can be argued that they should not have to answer much in the way of personal beliefs or philosophy now. That can be countered - that the nominees were probably known to the Senate in the early years of the country. But Sen. Biden said this week that he relies on people he knows who know the nominee. So, the information should be known to enough people to judge judicial nominees.

State judges are elected, and so owe a duty to speak to the electorate. How much they say should be pretty broadly interpreted. But, that assumes some kind of political speech is involved (if speech about public duty and policy is substituted, the last statement is less controversial).

Which leads to my concern: if we are choosing judges who follow the law given to them by the political branches of government, then we don't need to know as much about them, but if judges interpret through their own biases, then we need to know more. Our need to know is based in part on what we want judges to do.

If we want to see rulings based on a fixed constitution (as state constitutions were supposed to be in the 19th century), then we need to know less about the judge's bias - we can trust the judge to follow the original intent. If we want judges to interpret a living document, then we better be very sure about what the judges believe and what their biases are. More importantly, the judges in this kind of interpretive system will be subject to political and policy scrutiny. That scrutiny becomes more troubling in an elective system. This makes me look toward the originalist interpretation camp to protect and preserve our judicial system.

None of that was controversial, so I expect the silence that follows to be interpreted as concurrence.

[Charlie Hinkle]

Elections for judges make little sense, unless the electorate knows something about the judges for whom they are asked to vote. The State of Washington had a ridiculous situation just a few years ago, when a candidate for Supreme Court was elected because he had the same name as a recently retired and well respected member of the Court. (Those may not be the exact facts, but they are pretty close.) Name recognition, by itself, is hardly a qualification for judge. Even worse, voters are more likely to vote for "middle of the road" names than for strange or unusual names. John Roberts would defeat Zbigniew Brzezinski in any state in the Union, even if the latter were the most qualified lawyer who ever walked the earth.

Therefore, voters are entitled to know something about the men and women they are asked to vote for. Oregon law prohibits judicial candidates from identifying themselves as D or R on the ballot. Why? Knowing that I'm a D may not tell you much about me, but it tells you something. Shouldn't voters know that much?

And shouldn't voters know if I have an "agenda"? Professor Fried was interviewed last week on NPR, just before he testified during the Roberts Hearings. When he was asked if judges have agendas, he said Sure -- Justice Brennan did. Maybe, maybe not. But no one can doubt that Justice Thomas has an agenda -- and that is to turn the clock back (sometimes WAY back) on many constitutional doctrines. He wants to overturn 50 years of Establishment Clause jurisprudence, and 180 years of Commerce Clause jurisprudence (even Chief Justice Marshall got it wrong on the Commerce Clause, according to Justice Thomas). If we had a candidate for Oregon Supreme Court with a comparable agenda regarding Oregon constitutional jurisprudence, aren't the voters entitled to know it before they vote?