Black Robe Banter

PA judicial candidates now free to talk about the issues

Ed Rendell is still moving boxes into the Governor’s mansion, but Pennsylvania voters will soon turn their attention to filling another important statewide office – a seat on the Supreme Court.

The recent retirement of Justice Stephen Zappala has created a rare opening on the court which, like much of government in Pennsylvania, is rather evenly divided, Republicans have a one seat edge. The departure of Zappala, a Democrat, gives the GOP the opportunity to solidify its hold on the high court. Republicans have been on a winning streak in statewide court races in recent years, but Democrats are hoping to build upon last year’s Rendell victory and hold onto Zapalla’s seat.

This will be a Supreme Court election like none other. This year, the candidates can actually take positions on issues.

Pennsylvania, like many other states, previously banned judicial candidates from taking positions on controversial issues like abortion, and gun control leaving candidates to talk about their resumes or making general statements like “I’d be tough on crime.” But, last June the U.S. Supreme Court struck down a similar speech ban in Minnesota, allowing judicial candidates all across the land to speak freely.

The gag rule on judges was part of the arrogant position held by many in the legal profession that judges are somehow above and apart from other public offices. In dissenting from the majority U.S. Supreme Court decision, Justice Ruth Bader Ginsburg reflected that arrogance saying “judges are not political actors and the first amendment does not require that they be treated as politicians simply because they are elected.”

Well, judges are political actors and their views no more deserve to be shielded from public scrutiny than do those of governors and legislators. Justice Antonin Scalia had it right when he sided with the people saying: “We have never allowed the government to prohibit candidates from communicating relevant information to the voters during an election.”

To illustrate the power of Scalia’s argument, a broad coalition ranging from the conservative American Center for Law and Justice to the liberal American Civil Liberties Union opposed the Minnesota judicial speech ban. Predictably, lawyers and judges supported it.

Thanks to Scalia, and the conservative majority on the U.S. Supreme Court, Pennsylvania voters will now know what they are getting when they vote for judicial candidates. Alan Novak, Chairman of the Pennsylvania Republican State Committee told the Harrisburg Patriot-News the decision means “that justice will be blind, but voters won’t be blind and ignorant of what candidates believe.”

The ruling doesn’t just apply to candidates for the Supreme Court. Candidates for Pennsylvania’s other appellate courts, as well as candidates for county judges of the courts of common pleas are also free to express their opinions.

That leaves one big question – will they? Will judicial candidates fully and freely answer the questions presented to them, or will they still try and hide behind the mystique the legal profession has so carefully crafted around judges? That’s where we the voters come it. Our constitutional right to know where our judicial candidates stand on the issues has been restored. Like all rights, we need to exercise this right – or surely we will lose it.

I predict many candidates will still suggest it isn’t “proper,” or “appropriate” to engage in issue debates. Others will say the new landscape hasn’t been “tested” and they aren’t sure what they can say. Candidates who give those answers, regardless of the party to which they belong, should be defeated.

The U.S. Supreme Court has now said judicial candidates are political animals just like candidates for all other offices. They can now say whatever they want. We the people deserve to know where our candidates for court seats stand before we cast our ballot, not afterward when they start issuing rulings with which we disagree. Let’s hold them to the same high degree of scrutiny we give candidates for all other offices – because now we can!

(Lowman Henry is Chairman & CEO of the Lincoln Institute of Public Opinion Research, Inc., a Harrisburg-based non-profit, educational foundation. His Keystone Commentaries are heard statewide on Lincoln Radio Journal.)