May 30, 2005
Loosened Rules Loosens Conduct
By J. Barlow Herget
RALEIGH - Two faces in the crowd. They may have been innocently walking by the legislative building during one of the frequent special interest rallies held there.
Or they could have been quietly demonstrating support for the Marriage Under Fire group who protested for a constitutional amendment to prohibit homosexual marriages.
The two people who knew what they were doing there aren’t saying. But their presence has others talking, namely reheating the debate about judicial conduct and politics.
It is a dilemma that has dogged judicial elections, and Supreme Court Justices Edward Brady and Paul Newby are familiar with the issue. They were the pair at the May 10 rally, silently standing at the back when noticed by a reporter.
For decades, incumbent judges and judicial candidates were restricted by legal canons in offering their personal opinions on issues that might come before them in court. The purpose of the rules was to protect the courts from even the appearance of unfair or biased justice.
These rules were loosened first by a 1997 change in the Code of Judicial Conduct by former Chief Justice Burley Mitchell, a Democrat.
That was followed by the U.S. Supreme Court decision of Minnesota v. White in 2002. It struck down conduct codes and left the impression that judges enjoyed unrestricted free speech like the rest of us.
The White decision, said Chief Justice I. Beverly Lake, Jr., a Republican, made one thing clear: “If you are going to have judicial elections, you cannot deprive the candidates of their constitutional right to participate in the political process.” And he loosened the state codes more in 2003.
The impact of the changes is discussed in a new Law Review article published by the University of North Carolina School of Law. Author Chris Heagarty, executive director of the N.C. Center for Voter Education, found that in North Carolina, “many judges . . . continue to refrain from discussing their personal views on issues that might come before the court.”
He warns, however, that special interest groups and issue advocates increasingly demand judicial candidates to stake out their positions during campaigns. If candidates comply, it doesn’t take a law degree to predict where these groups will spend their campaign money.
Heagarty cites two recent elections in which one candidate held to the old rules and the other boldly made known his views. One candidate in a 2002 Supreme Court race in Pennsylvania, Democrat Max Baer, described his positions as his “vision of life” on labor unions, gun control, abortion and tort judgments.
The other race was here in North Carolina – Edward Brady’s 2002 primary and general election campaigns for his current seat. He, too, told voters that he would support a “Republican agenda” on issues similar to Baer’s.
Both Baer and Brady won.
Yet, it was just the opposite in two races last year. Jesse Rutledge, communications director for a Washington-based judicial watchdog non-profit, says in Ohio and Georgia, voters picked the judicial candidates who kept their “vision of life” to themselves. Voters there argued that outspoken campaigning was “inappropriate,” he says.
Rutledge’s organization monitors judicial elections nationwide, and he believes that “it’s an open question” still if declaring political positions is a benefit. Like Heagarty, however, he warns that if more candidates adopt such tactics, they will do it to satisfy the demands of interest groups.
It is these groups, many of them 527 political non-profits, that have turned court races into sewer games. They are not bound by any legal canons, and a favorite ploy in 2004 races was to accuse an opponent of being soft on child molesters.
North Carolinians haven’t yet seen such smears. In an ominous comment at a recent forum on court elections, Superior Court Judge Howard Manning told the audience of his losing experience in 2004. He lost to Justice Newby, someone who openly declared his opinions on such politically hot issues as gay marriage, a lottery and tax incentives for new businesses.
After Manning’s defeat, a politically savvy supporter advised the judge that if he ran again, he should find someone to establish a 527 to do the campaigning for him.
Mathew Eisley, a veteran court reporter for The News & Observer, agrees with Heagarty that most judicial candidates here “are reluctant to take positions on political issues.” He adds, “Generally, once they’re elected, they’re conscientious about following the law.”
That’s an encouraging view. Because Brady’s and Newby’s victories will not be lost on future judicial candidates.
Barlow Herget is a former Raleigh city councilman and writes the Follow the Money column for the N.C. Center for Voter Education.
743 W. Johnson St.
Suite E
Raleigh, NC 27603
919.839.1200