- The Washington Times - Wednesday, March 27, 2002

Yesterday's Supreme Court hearing on whether candidates for state judge may commit themselves on issues during a campaign detoured into a debate over free-speech rights for high-court nominees being grilled by the Senate.
"It is impossible, hopelessly impossible, to know what is inside this rule and what is outside of it," said James Bopp Jr., general counsel of the James Madison Center for Free Speech.
The case involves a candidate who sought a seat on the state Supreme Court in Minnesota one of 38 states where voters choose their judges. A state law prohibits candidates from "announcing" their views on issues likely to come before the court. Eight other states have similar bans.
Justice Antonin Scalia voiced a personal reaction when Minnesota Solicitor General Alan I. Gilbert said candidate Gregory Wersal, who quit the race because he feared violating the ban, described himself as "a strict constructionist" and said state Supreme Court justices were "judicial activists."
"That's so fuzzy it doesn't mean anything. … It's nothing but fluff," said Justice Scalia, about whom presidential candidate George W. Bush used the words "strict constructionists" in his campaign when describing his appointees if he won.
Justice Scalia noted that many justices "present company excluded," he said with a grin committed themselves on particular issues over the years under Senate questioning before lifetime confirmation to jobs that don't require election.
Mr. Gilbert sought to draw a distinction between the election campaigns and the Senate Judiciary Committee, but Chief Justice William H. Rehnquist advised against that.
"You should go before the Senate," said the veteran of two confirmation ordeals, the first resulting in 68-26 approval when President Nixon put him on the bench in 1972, and 65-33 approval after a grueling hearing when President Reagan elevated him to chief justice in 1986.
Justice Stephen G. Breyer said the senators didn't press him on specific cases.
"It comes down to an effort to do what I did in my own Senate confirmation hearing," he said, "not to commit or appear to commit myself on a future case."
Justice Sandra Day O'Connor asked about distinctions between a candidate explaining his philosophy and his written opinion that declared, "'I think the death penalty is unconstitutional, period.'"
Justice O'Connor, who made speeches last summer questioning the death penalty, asked why state voters wouldn't expect a candidate who wrote such words to rule the same way in the future.
She was told Minnesota law applies judicial canons of the American Bar Association parallel to those used in nine of the 38 states that elect judges Arizona, California, Missouri, Montana, Oklahoma, Oregon, Texas and Washington. They effectively allow judges to make their views known while candidates running against them are not permitted to do so.
"That's kind of an odd system to do what? Maintain incumbent judges?" Justice O'Connor asked.
When Mr. Gilbert said written opinions were different because they are the product of due process, he was interrupted by Chief Justice Rehnquist a prolific author and speaker on such issues as impeachment and civil rights in wartime.
"You mean a judge can't have an opinion without hearing from all sides … and give a speech?" the chief justice demanded.
Before the state solicitor could answer, Justice Anthony M. Kennedy said Minnesota must not trust its voters.
Minnesota bars candidates from "announcing" their views on matters likely to come before them if elected, which Mr. Bopp attacked as an unconstitutional reach far beyond the customary ban on "pledging" an outcome.
A federal court upheld the Minnesota rule, but Justice Scalia called such laws an apparent "legislative effort to, in effect, repeal the election provision" in Minnesota's 1858 constitution.


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