The far-right has marched its campaign to take over the judiciary right to the Supreme Court. A group of state judges, judicial hopefuls and anti-abortion activists is asking the Roberts Court to weigh in on whether or not it is a violation of First Amendment speech rights to prevent judicial candidates from answering questionnaires seeking their positions on certain issues.
These activists have filed not one, but two petitions for review on this issue arguing that judicial codes that prevent judges from disclosing their political opinions violate the First Amendment’s broad protections of political speech. The cases are Bauer v. Shepard from Indiana and Siefert v. Alexander from Wisconsin.
Both cases press the issue of just what extent do we want our judges as active participants in the political process. While many argue that judges are already politicians and campaign, only they do so for governors and presidents, those who ultimately make judicial appointments. At the same time the judiciary is not, by it’s nature a lawmaking body, it is an interpretative body and one that must balance the political drives of both the executive and the legislative. Judges are supposed to rise above the political fray and render decisions that will sometimes be unpopular, which means that in some ways they should be isolated from the kind of electoral accountability faced by Congress and the executive so as to remove the temptation to render decisions based on their personal professional fate rather than the dictates of law and reason.
However, given that judges are, at least on the state level in many places, on the ballots does create a need for some way to support an informed public when it comes time to cast a ballot. And it is silly and naive to suggest that judges do not make political decisions or are not affected, in some way, by personal opinions or bias. For our justice system to function properly we need a balance between accountabilty and detachment. I’m just not so sure that opening up judicial campaigns to partisan stump speeches is the way to strike that balance.
photo courtesy of KeithBurtis via Flickr
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