Friday, July 21, 2006

Free Speech for Me, But Not for Thee 

John Borger and Leita Walker have an article in the Minneapolis Star Tribune concerning judicial impartiality. It begins:
Federal court decisions have erased long-standing state rules against partisan endorsements and candidate issue statements in judicial elections. Minnesota should respond by strengthening other traditional guarantees of fairness in court.

Critics of those court decisions fear that Minnesota's independent judiciary will suffer from demagoguery and the public's loss of faith in judicial integrity. Some call for revised limits on judicial speech. Others suggest a constitutional amendment to shift to "retention elections" or even to no judicial elections at all.

Whatever the merits or practicalities of other approaches might be, Minnesota can immediately reemphasize a fundamental principle that focuses on judges' neutrality on the bench rather than their speech in other settings: Judges should not decide cases when their extrajudicial statements cast doubt upon their impartiality in those cases.
The piece goes on to recommend that judges must recuse themselves in such situations. Sounds fair, right? Judges and those seeking to become judges are free to say what they want, but litigants are still entitled to have their cases judged impartially. But there are a couple of things in the piece that should raise red flags.

Borger and Walker recommend near-automatic removal of a judge in cases where "extrajudicial" speech casts doubt on the judge's impartiality. That means that a sitting judge is free to write whatever he or she wants in a court ruling, or even a dissent, and still hear a subsequent case involving the same or similar issues. But a challenger is not free to criticize that same ruling or dissent, without the risk of being removed from a future case. Once again, this is an attempt at incumbent protection. The incumbent has free speech, but the challenger is limited because his or her speech is always "extrajudicial."

The other problem is that previous proposals have indicated that the rule on recusal would be limited to speech while a person is a candidate for judge. So speech that comes before the filing period is deemed to have no potential to compromise impartiality. However, the exact same speech in the months between the filing period and the election is dangerous to a fair and impartial judiciary. Why the difference? Because it is an attempt to limit the ability of challengers to win elections.