I am close to being a first amendment absolutist. While some of the stuff that we see in the course of judicial elections tries my commitment, I am opposed to almost all regulation of campaign speech. As we face another Supreme Court election in Wisconsin, I fear my commitment may be tried again (although it is, at this point, unclear whether there will be much of a race).
I am a judicial election agnostic. I have often said that campaign speech in judicial election will often make me, as someone who studies and loves the law, cringe. But just when I am ready to dismiss the idea of elected judges, I think of the last confirmation battle over a Supreme Court or controversial lower court nominee and I am back on the fence.
Let me try to illustrate this in what may be seen as a provocative way.
The other night, while preparing my award winning chili, I read a review by Andrew McCarthy of Robert’s Bork latest book in The New Criterion. McCarthy recalls Senator Kennedy’s invocation of “Robert Bork’s America” as one in which “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government.”
This strikes me as every bit as nonsensical as the ads with dead bodies, empty swings and slamming jail doors. Not only did it stretch Bork’s jurisprudence into something that he himself would not recognize, it suggests that, if a desired policy is not imposed by the judiciary, it will not be adopted at all. Bork does not believe in a constitutional right to abortion, but neither does he believe in a constitutionally mandated prohibition of abortion. One can certainly disagree with Bork’s judicial philosophy, but wasn’t Kennedy’s attack just as misleading as the suggestion that a judicial candidate delights in the release of criminals?
On my personal blog, a commenter suggests that this is simply a prediction of what “would happen,” but it both badly mistated Bork’s view and ignored the distinction between what the constitution requires and what good policy might dictate. We want to tell people its wrong to simply look at the consequence of a particular application of, say, procedural safeguards for a criminal defendant. Don’t we also need to tell people that a judges’ refusal to require a particular policy is not the same thing as opposing or prohibiting it?
Cross posted at Shark and Shepherd.