Associated Press article discusses Carey race against Judge Schroder for Sup. Ct. seat

If Marcus Carey had his way, he’d tell voters how he feels about abortion, the right to bear arms and gay marriage.

Kentucky’s judicial campaigning rules recently were loosened on how much candidates can say, but they still bar him from revealing his viewpoints, at least “intentionally or recklessly.” Carey says that deprives voters of “their right to know.”

His frustrations as a state Supreme Court candidate are illustrative of a new era of judicial races – a time when traditional campaigns touting experience on the bench is giving way to rhetoric typical of stump speeches.

A decade ago, it was virtually unheard of for judicial candidates to express their viewpoints on hot-button issues – or even want to, experts say.

Not any more.

Since a 2002 U.S. Supreme Court ruling that all candidates for public office have a constitutional right to announce their views on “disputed legal and political issues,” more judicial candidates are willing to express their views on everything from gay rights to God.

Several states, such as Missouri and South Dakota, relaxed their rules after the Supreme Court ruling, while others, like Kansas and Minnesota, struck down such restrictions altogether.

While the 2002 ruling supports the right to free speech, critics say it also opens the door for lobbyists and special interest groups to pressure candidates to commit to an issue – typically in a questionnaire – in exchange for contributions and ultimately jeopardizing fairness and impartiality on the bench.

“The real problem is a variety of special interest groups from the far left to the far right have seized upon this to send out questionnaires to judicial candidates,” said Doreen Dodson, chair of the American Bar Association Standing Committee on Judicial Independence. “Money of course plays a big role in this and that’s a terrible danger.”

On the other hand, some say voters will benefit from free-speaking candidates by knowing how they stand on important issues and who is backing them.

Kentucky’s new rule bars candidates from identifying themselves as a member of a political party or expressing their personal beliefs, a change from a previous regulation that prohibited judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.

A federal judge took the rule a step further by recently ruling that Kentucky’s judicial candidates can tell voters which political party they belong to and can even personally solicit contributions from attorneys who might later argue cases before them.

With Kentucky’s record 247 judicial openings this year, experts say it’s the state to watch for candidates who may push the free speech envelope.

“We will be keeping focused on developments in Kentucky. It’s extraordinarily unusual to have so many judicial candidates on the ballot,” said Jesse Rutledge, a spokesman for Justice at Stake, a nonpartisan Washington-based nonprofit that researches judicial issues.

“You’re in a situation where you have a very high number of candidates and hotly contested races across the state,” he added. That means “some candidates are going to speak more freely on political issues and religious issues.”

In Carey’s race, the candidates’ campaign Web sites do the talking. While Carey’s offers podcasts in which he discusses his lawsuit challenging Kentucky’s campaigning rules, his opponent, Court of Appeals Judge Wil Schroder, is taking a traditional approach. His only posts his years of experience as a judge, offering no indication of his position on controversial issues.

Schroder, a 22-year veteran, said judicial candidates should rely on their experience on the bench and their history of court opinions to get the message across to voters. He said candidates who express opinions publicly risk having to recuse themselves from cases later.

“A judge doesn’t make law, the judge interprets the law,” Schroder said, adding that his 1,700 appeals court opinions over the past 15 years are a fair depiction of his judicial philosophy.

“If you’ve been on the court that long, you’re an open book,” he said.

Kentucky’s recent rules change hasn’t made a huge impact on how candidates are campaigning – at least not yet, said Al Cross, a member of the state Judicial Campaign Conduct Committee and a former political writer.

“I have not seen so far a tremendous expansion of rhetoric by judicial candidates. There are a few cases that I believe candidates have gone farther than they would have without changes in the rules,” said Cross, declining to name specific races.

At least one Kentucky Supreme Court race has offered a preview of what relaxed speech rules may do to judicial races.

During his speech at Fancy Farm, Court of Appeals Judge Rick Johnson gave his thoughts on the Ten Commandments, abortion and gay marriage. His opponent, Circuit Judge Bill Cunningham, warned the crowd of falsehoods being spread regarding his views on gun ownership.

Not only did the speeches keep political blogs abuzz, but they served as an early indicator of judicial candidates playing politics.

Taking stances could result in judges having to recuse themselves from cases once they’re on the bench, and it invites lobbying groups – not voters – to play a larger role in judicial elections, Cross said.

The influence of such groups is clear nationwide.

An analysis by the Brennan Center for Justice at New York University’s School of Law and Justice at Stake shows that special interest groups so far have spent $1.8 million on television ads to influence the outcomes of 2006 state Supreme Court campaigns – a 69 percent spike over the same point in the 2004 election cycle.

Two years ago, spending by special interest groups through September accounted for one quarter of television advertising expenditures in Supreme Court races. This year that figure has climbed to 39 percent.

Already, figures reported to the Kentucky election finance board indicate that eight candidates for the Kentucky Supreme Court have combined to raise $1.5 million – a record amount.

Loosening free speech rules for judicial campaigns has not only empowered judicial candidates, “it’s empowered special interest groups to try to pressure judges to rule their way rather than rule under the law,” Rutledge said.

“They can’t buy a seat, but they can buy a philosophy,” he added.

But James Bopp Jr., an Indiana-based free speech attorney representing Carey who also argued against Minnesota’s canons in the 2002 U.S. Supreme Court case, adamantly disagrees. He said allowing judicial candidates to express themselves, much like political candidates, on hot topics, is the only way to ensure that voters really know who they’re selecting.

“Voters need information they can use,” Bopp said. “To tell them to read legal opinions is not very helpful,” especially if the candidate has never served as a judge.

Bopp said judicial campaigns allow for transparency, giving candidates latitude to criticize their opponents’ stances and history. Such races would also keep contributions by special interest groups in check since, he said, a candidate would be eager to reveal the source of his opponent’s backing.

However, Bopp stressed that Kentucky new rule for campaigning is too vague, leaving candidates to err on the side of a traditional campaign for fear of violating judicial canons.

“There’s a huge resistance to allow judicial candidates to announce their views,” he said. “Rather than adopt a clear rule, they adopt a vague rule.”

Cross took it a step further and said not only is the rule fuzzy, but the consequences for violating it aren’t clear either.

“We’re still operating in very much a gray area,” he said. “Federal courts have loosened the rules and sent a clear signal that candidates can be freer to say what they want to say without fear of sanctions.”


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