Questionnaires reviewed by NPR probed the views of judicial candidates on such issues as: whether Roe v. Wade was wrongly decided; whether foreign laws should have an impact on how U.S. laws are interpreted; and which current Supreme Court justice best reflects their own judicial philosophy.
Read some of the questionnaires below.
In many states, judges are chosen through popular elections. And as Election Day nears, special-interest groups are pushing judicial candidates to fill out questionnaires that probe where the candidates stand on controversial issues.
The questionnaires have been around a long time. In his 16 years as chief justice of the Texas Supreme Court, Tom Phillips saw a lot of them — from newspaper editorial boards, local civic groups and religious organizations. He says the most creative one came from Concerned Gun Owners of America 1996. Without touching on legal issues, it tried to gauge whether the judge was a firearm enthusiast.
"The questions to the judges were along the lines of, 'When's the last time you went target shooting? How many stuffed animal heads do you have in your living room? How many guns are in your home?'" Phillips recalls.
Today, questionnaires are much more direct. One, from the Indiana Right to Life, poses the opinion: "I believe that abortion should be permitted only to prevent the death of the mother." Judicial candidates are then asked to check one of the following options: agree, disagree, undecided, or decline.
Supreme Court Justice Antonin Scalia says these kinds of questionnaires make informed voters. Four years ago, Scalia wrote a Supreme Court opinion that had a major impact on this issue. The case challenged Minnesota's judicial code of conduct, which prohibited judicial candidates from announcing their views on disputed legal issues. In a 5-4 ruling, Scalia said Minnesota's rules violated candidates' freedom of speech. That opened the door for candidates to respond to pointed questionnaires.
Many states have judicial codes of conduct like the one the Supreme Court struck down in Minnesota. Many were designed to prevent candidates from courting votes by promising specific results in certain cases or classes of cases. Attorney James Bopp has filed several lawsuits challenging these laws.
"In the vast majority of states, the speech restrictions go way beyond pledging or promising certain results in particular cases, to encompass prohibiting announcing your views," Bopp says.
But attorney George Patton, who has argued against Bopp in several cases, says the laws are needed to protect judicial candidates. He says groups that send out such questionnaires are trying to make it an "obligation" for candidates to answer them. And that, he says, can blur the lines between the role of a lawmaker, who should act on his principle, and a judge, who should evaluate each case objectively.
For Mark White of the National Center for State Courts, the problem is not questionnaires, per se. It's the check-boxes.
"When you send a candidate a questionnaire and say you cannot give a narrative response, then I think that's grossly unfair," White says. "That demonstrates, to me, [that] whoever's asking the question not only wants to frame the question, they want to frame the answer."