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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
Lawmakers are not the only people running for office this fall. 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 to show where they stand on controversial issues.
These questionnaires have become more pointed in recent years, and as NPR's Ari Shapiro reports, that makes some judges uncomfortable.
ARI SHAPIRO: Tom Phillips was chief justice of the Texas Supreme Court for 16 years. In that time, he saw lots of questionnaires from newspaper editorial boards, local civic groups and religious organizations. He says the most creative one came in 1996 from Concerned Gun Owners of America.
Hon. TOM PHILLIPS (Former chief justice, Texas Supreme Court): "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? Etcetera.
SHAPIRO: Not a single question about a legal issue, but it gave the group a clear sense of whether the candidate was a firearms enthusiast.
Today, questionnaires are a bit less circumspect. For example, this is from a questionnaire by Indiana Right to Life. "I believe that abortion should be permitted only to prevent the death of the mother. Check one - agree, disagree, undecided or decline."
Supreme Court Justice Antonin Scalia says these kinds of questionnaires make informed voters. He was part of a panel at fred friendly seminar on judicial ethics that will be televised on PBS next year.
Justice ANTONIN SCALIA (Supreme Court Justice): Why am I voting for you?
Unidentified Man: I'm going to write it in a way -
Justice SCALIA: Because I like the way you tie your tie? I mean, I'm voting. Assuming you want to elect judges. Now maybe you shouldn't elect them. If you don't elect them, that's fine. But if you have decided to elect them, what is the basis on which you're going to select among the candidates?
SHAPIRO: 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. The code 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. And attorney James Bopp has filed several lawsuits challenging these laws.
Mr. JAMES BOPP (Attorney): Judicial candidates can be prohibited from pledging or promising certain results in particular cases or classes of cases. The fact, though, is in the vast majority of states, speech restrictions go way beyond pledging or promising certain results in particular cases to encompass prohibiting announcing your views.
SHAPIRO: In many of the lawsuits, Bopp's opponent is attorney George Patton.
Mr. GEORGE PATTON (Attorney): What's happened is groups like Right to Life and the Family Foundations are trying to take a right and make an obligation out of it in the election contest. You now have a right to announce your views, so why don't you announce your views?
SHAPIRO: He thinks questionnaires like these blur the lines between the role of a lawmaker, who should act on his principles, 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.
Mr. MARK WHITE (National Center for State Courts): When you send a candidate a questionnaire and you say you cannot give a narrative response, then I think that's grossly unfair. That demonstrates to me whoever's asking the question not only wants to frame the question, they want to frame the answer.
SHAPIRO: White chairs the Center's advisory committee on judicial campaign oversight. His group has sent a memo to judges giving them tips on how to handle questionnaires.
Stephen Gillers teaches legal ethics at NYU Law School. He agrees with Justice Scalia that if America has decided to elect judges, then voters need to know where those judges are coming from. But he sees an underlying problem with electing judges in the first place.
Professor STEPHEN GILLERS (New York University): If the candidate for the judicial office is elected, we're going to get a lot of special interest money. We're going to get a lot of media advertising that doesn't really focus on the grave issues of law that judges consider, but rather hot button issues of the moment - pro-life, pro-choice, gun control, tort reform.
SHAPIRO: He says 99 percent of what judges do has nothing to do with the hot button issues. So the qualities voters should be looking for in a judge are wisdom and thoughtfulness, regardless of a candidate's view on abortion or gun control.
Ari Shapiro, NPR News. Washington.
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