The fact that a special interest group would question a judicial candidate about legal controversies, such as same sex marriage and parental notification for abortions, suggests a search for a judge with his or her own agenda. No boilerplate caveat can eliminate the public's impression that this will be a judge who is committed to a position on a vital issue. It is naive to think this is anything other than an attempt to obtain from a candidate a prohibited pledge or announcement.
The touchstone of judicial ethics is to avoid the appearance of impropriety, in this case prejudice. The JEAC opinion places the judicial candidate squarely in a position of appearing less than neutral. The opinion acknowledges the possibility of future motions to disqualify based on such expressed beliefs. I would suggest a lawyer would be almost negligent if he or she did not use such information to attempt to disqualify a judge.
It is clear the JEAC was concerned about infringing on a candidate's freedom of expression. However, judges are required to forego certain freedoms, notably those of expression and association. Judicial candidates should accept some limitations for the same reasons, the appearance of impartiality. The Supreme Court should require judicial candidates to agree that they will follow the law without regard to their personal beliefs. That would make personal belief a nonissue and render such questions unnecessary.
R. Layton Mank
I read in the September 15 News about the suit that John Stemberger's group filed in federal court seeking to prevent the JQC from enforcing what amounts to a "gag rule" for judges and those who would like to be judges. I also read Judge Peter Webster's reply and felt that I should comment.
It seems to me that we have three branches of government. Two of those branches are marginally accountable to the public and one of them is not in any way accountable. The fact is that judges wield an awful lot of power and we, the members of the public, have a responsibility to know the issues of the day and to know further how those "public servants" who supposedly represent us think about those issues.
The bedrock of our form of representative government is trust. We have to trust our public officials. Now the question becomes: How can we members of the public be called upon to trust our public servants when those same public servants don't have to tell us anything about what they think before we give them a job that they will likely have for decades and that allows them to wield all this power?
The bottom line is this: If any other politician (and judges are politicians; let's not kid ourselves) says, "I want your vote. I want you to trust me with governmental authority, but I'm not going to tell you anything about the opinions I hold on the issues that you consider to be important because that would be in some way improper," I doubt very sincerely that that guy or gal would be getting very many votes. So my question to Judge Webster and to other judges is, "Why should we trust you if you won't answer the questions that many of us consider important?"
Is it not, after all, political arrogance to suggest that because of some special rule created by judges for judges that those who apply the law don't have to answer any of the questions that those who make the law and enforce the law have to answer?
We need to rethink some of the traditional approaches to the judiciary. I think a cogent argument can be made that if the president of the United States can only serve two terms maybe everybody should only serve two terms. I don't expect anything to change. I'm not unmindful of the fact that government takes care of itself first and foremost.
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|Author:||Mank, R. Layton; Mullins, Ernie|
|Publication:||Florida Bar News|
|Article Type:||Letter to the editor|
|Date:||Oct 1, 2006|
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