If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit, running for a seal on the Georgia Court of Appeals Judge Gary Andrews, went on the attack with the first negative statewide television advertising campaign even seen in a Georgia judicial election.
Merrit's 30-second ad assailed Judge Andrews for using "a technicality in 1991 to reverse me conviction of a man who had confessed to molesting his own four-year-old son. The ad stows Merritt saying: "People who commit aims against innocent children should be convicted and serve their entire sentences. Isn't it time our judges protected us from criminals instead of protecting criminals from justice?"
The state Judicial Qualifications Commission denounced Merritt's ad, in a June 28 advisory opinion, as violating Canon 7 of the slate's Code of Judicial conduct, which is binding on all candidates in judicial elections. The commission-which reports to the state supreme court-noted that it "unfortunately" had no power to impose a prior restraint on speech. But if warned that any lawyer-candidate using an ad like Merrill's could fee subjected to judicial discipline if he won and to state bar discipline if he lost.
The commission faulted me ad for "fail[ing] to disclose that the decision [written by Andrews... was by a 7-2 majority of its court; that cases, especially those on appeal arc frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal"
The commission also stressed that Merit's ad "appears to prejudge legal issues which may well come before him for decision should he be elected; "falls for short of the dignity appropriate to any judicial office"; "tends to bring the judiciary into disrepute ; and seeks to focus the attention of an unknowing voting public, not on the qualifications of a judicial candidate, but rather on one of the most controversial issues of the day-child molestation."
Imagine that-a candidate for elective office seeking votes from the "unknowing public" by talking about "controversial issues of the day"! What has democracy come to?
And while my First Amendment funny bone is twitching, let me dwell on how troublesome it is to subject speech in any political campaign to censorship by an arm of the state (the judiciary) for the purpose of preservating its own "dignity." After all, as Merritt has stressed, his ad was not literally false. The Commission's & ruling that it was not "fair and truthful" based on what the ad omitted-the 7-2 nature of the decision and so on. This logic has no obvious stopping point short of requiring that any such ad include the full text of the decision being criticized Indeed, the commission's opinion, the state code of judicial conduct on which it was based, and similar codes around the country contain such broad and vague admonitions that no candidates in a judicial election could feel entirely safe in criticizing any decision of law by an incumbent judge, or in stating his or her own position on any controversial issue.
Georgia's Canon 7, for example, provides (among other things) that candidates "should maintain the dignity appropriate to judicial office" and "should not ...announce their views on disputed legal or political issues" m "misrepresent... facts." Almost all states with judicial elections have similar (or similar narrower) prohibitions.
In short, the whole field of judicial elections has tea pit off limits to the freedom of speech. There have been a few lower court decisions around the country upholding First Amendment attacks on such rules. But the norm is that thousands of people are elected to powerful judgeships in a process almost untouched by what the Supreme Court has called the "profound national commitment to... uninhibited, robust, and wide-open" debate on public issues.
Before we start feeling too outraged at this regime of censorship, however, imagine what it would be like if Mark Merritt's brand of advertising were to become the rule rather than the exception in judicial elections.
This is a plausible scenario, given the increasing prevalence in no judicial political campaigns nationwide of misleading, negative advertising; of judge-bashing; and of the kind of tough-on-crime posturing that is also becoming more common in judicial elections.
The current public mood is so punitive that any conscientious judge risks being smeared as a crime-coddling technically-twiddler, only those who rule for She prosecution on every issue, in every case, are safe. Before tag, we may routinely be toted to the spectacle of judges and their challengers winning elections vowing to impose the death penalty on every murder; rape, or drug defendant who walks into their courtroom Merritt's ad was unfair and misleading (albeit not literally false). Even the prosecutor in the child molesting case has acknowledge that; the 7-2 Andrews opinion throwing out the conviction was probably a correct application of the state's hearsay rule.
It's also clear that the personal injury lawyers who bankrolled Merritt's advertising campaign-the most expensive in the history of Georgia judicial elections- Were a child molester. They were mad at him for coddling insurances companies.
Andrews-whose campaign was run by an insurance company lobbyist-has ruled for insurance companies and other tort defendants far more regularly than most of his colleagues. So the plaintiffs bar set out to get rid of him, anointing the 34-year-old Memo as the preferred challenger and giving Merrill most of his record-setting $250,000 war chest, most of which then went to pay far the TV ad.
Meanwhile. Andrews raised $44,000, mostly from defense-oriented law firms. Former Attorney General Griffin Bell circulated a memo urging his law partners at Atlanta's King & Spalding to give to Andrews, "who has been supportive of positions helpful to our clients."
Since advertising about tort rulings would not be a good bet to galvanize the electorate, the Merritt campaign seized on the Andrews opinion in the child molesting case.
This sort of thing could give censorship a good name. And with the unraveling of the social (and professional) taboos that in the past have deterred most judicial candidates from crass campaign tactics, we may be confronted ever more insistently with an unappetizing choice: Should First Amendment values be sacrificed to preserve the ideal of an impartial judiciary? Or vice versa?
We can tinker around the margins of this trade-off, by fine-tuning the censorship regime and the rationales for it. For example, courts have properly recognized preservation of the "impartiality" of the judiciary as a compelling state interest, warranting some restrictions on speech that appears to commit judges and judicial candidates to prejudge cases likely to come before them. But it is an affront to core First Amendment values to suppress speech for the sake of the "dignity" of the judiciary, or of any other institution or group.
In the long run. however, the only good way to resolve the conflict between free speech and judicial impartiality-and to avoid the ugly spectacle of judicial campaigns financed by self-interested factions of lawyers-is to do away with contested judicial elections entirely.
By the way. Merritt finished a distant third in Georgia's July 9 election, with 18 percent of the vote. Andrews won 44 percent. Another challenger, Anne Elizabeth Barnes, won 26 percent, and the right to face Andrews in the Aug. 6 runoff.
Did Merritt's tactics backfire and bury him under a well-deserved wave of voter revulsion? Not necessarily. He apparently did better in areas where his ad was shown than in the few border counties where it was not. Andrews had the usual incumbent's advantage, and Barnes may have benefited from being the only woman in the four-person race.
The outcome could also be partly attributable to the advantage enjoyed by those ranking highest in that most apolitical of judicial selection criteria: alphabetical order.
Clarification: In "The Whitewater Endgame," (June 3, 1996, Page 23), I wrote that Richard Ben-Veniste bad been one of the Watergate special prosecutors "pressing hardest for indictment" of President Richard Nixon, "at least after Nixon's resignation in August 1974." This may have given readers the false impression that Ben-Veniste was also pressing for indictment before Nixon's resignation. I regret any such misimpression.
In fact, white Nixon was president, Ben-Veniste was of the view that the impeachment process was the best way to deal with Nixon's alleged crimes.