WASHINGTON, March 19 (UPI) -- Policy analysts from across the political spectrum presented an unusual consensus at a debate sponsored by the Cato Institute last week. They were arguing the merits of a case that the U.S. Supreme Court will hear on March 26, which legal scholars say has far-reaching implications not only for its central issues of political speech and the integrity of independent state judiciaries, but also for the ongoing battle over the reform of class action lawsuits.
On the surface, the case, "Republican Party of Minnesota v. Kelly," presents a simple challenge: can states limit what candidates for elected judgeships may say while running for office?
The ideologically divergent analysts and lobbyists who have become strange bedfellows over this case all believe that a Minnesota law prohibiting judicial candidates from expressing publicly "views on disputed legal or political issues" violates the first amendment protections of the U.S. Constitution. Interest groups as diverse as the American Civil Liberties Union and Public Citizen on the left, and the conservative Chamber of Commerce of the United States on the right have filed briefs supporting the plaintiff's challenge.
Roy A. Schotland, professor of law at Georgetown University -- who prepared an amicus brief supporting the state's arguments in the case for the Conference of Chief Justices -- told United Press International that the main reason for the law is that it helps ensure that those charged with crimes receive due process. In addition, he said that the law helps protect against the biases that can arise from the election process.
"There is no question about who I think should win: it is the state," said Schotland. "The fact is that they [judicial candidates] don't just say things like they are 'tough on criminals,' but they take typical campaign sound bite jargon like politicians make, and all but pledge how they will rule. It has nothing to due with what is happening in the courtroom except in the sense that the judge is demonstrating that he will come in with a set of ideas affected by the voters."
But Robert Levy, senior fellow with the libertarian Cato Institute's Center for Constitutional Studies, and an opponent of judicial elections, said that while the concerns about bias and due process raised by the law's proponents are valid, the debate comes down to a balancing of the constitutional issues involved.
Levy told UPI that in this case the need to protect free speech is ultimately more important than the potential curtailment of due process.
"The due process concerns, while legitimate, are not sufficiently so to warrant a curtailment of candidate speech," he said. "There is a remedy [in the courts] for not getting due process, and therefore the consensus -- and my own view -- is that the first amendment concerns have to be weighed more heavily."
Todd Gaziano, director of the conservative Heritage Foundation's Center for Legal and Judicial Studies, echoed Levy's analysis.
"As long as we have the election of judges, voters have an absolute right to hear what they think," he said. "The government can't prohibit candidates from expressing their views generally."
Gaziano added that this provision in the Minnesota Code of Judicial Conduct failed the stringent First Amendment tests of the Constitution. He says that the restriction runs afoul of the basic requirement that any regulation of speech must not only further some compelling government interest, but it must also be narrowly tailored to achieve that goal.
He said that the Minnesota Supreme Court understood this fact, but failed when it tried to narrow the relevant provision in the law in order to make it constitutionally acceptable.
According to Levy, the law also fails to provide the bias protections touted by its proponents, and actually makes the election process unfairly biased towards incumbent judges.
"To the extent that candidates have biases, they exist whether they let us know about it or not," he said. "Voters are better informed when they are told of them. We are unlikely to have fair election processes if candidates are kept quiet on key issues."
He added that there are a host of protections built into the court system to alleviate judicial bias, up to and including justice recusal and the ability of appeals courts to overturn cases where a judge has demonstrated bias.
Levy also said when judges are elected rather than appointed, citizens must settle for the best in the "series of bad possibilities" that result.
"We may run afoul of the due process clause by compromising the rights of litigants when judges speak on issues," he said. "[But] I am afraid there is no way of rectifying that cost other than balancing it. I would much prefer if we didn't have to make the choice and judges were appointed."
There are other seemingly unrelated issues pertaining to class action lawsuits that are important to the debate over electing judges, said Alexander Tabarrok, vice president and director of research at the Independent Institute. The Oakland, Calif.-based think tank is widely praised as being one of the best and least partisan public policy research institutions in the country.
In a 1999 study published in the Journal of Law and Economics, Tabarrok and his colleague Eric Helland found that in civil cases adjudicated in states where judges are elected, the average award nationwide was about double (around $250,000 dollars higher) when the defendant in a class action is an out-of-state corporation.
In a follow-up report soon to be published in the American Law and Economics Review, Tabarrok and Helland found that awards in class action suits adjudicated in federal courts nationwide -- where the judges are required to apply the laws of the originating state -- the awards were no higher on average than those in states where judgeships are won through partisan elections.
Tabarrok said that the follow-up study was an attempt to control for other factors and confirms his belief that in states that use partisan elections, judges must do what they can to strongly appeal to voters.
"Local voters are a judge's constituents," he told UPI. "A partisan elected judge can redistribute wealth from out-of-state corporations to in-state plaintiffs--his constituents--by making minor changes in rulings that bias the case toward finding the corporation liable for large amounts of money."
Tabarrok added that these anti-corporate findings question whether the U.S. Chamber of Commerce is on the right side of the case in defending the rights of campaigning judges to speak out about public issues.
Tabarrok also said that both proponents and opponents of electing judges have solid arguments that are mired in compromise.
"Their will always be trade offs," he said. "You can have judicial accountability [through elections] or you can have independence, but you cannot have both."
