REPUBLICAN PARTY OF MINNESOTA v. WHITE

Transcript: 

ORAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We'll hear argument now on number 01-521, The Republican Party of Minnesota, et al., versus Verna Kelly.

Mr. Bopp.

Mr. Bopp: Mr. Chief Justice, and may it please the Court: Like most states, Minnesota selects its judges through periodic popular elections.

And when candidates' speech is severely restricted, the people are denied access to the information they need to make an informed choice.

While state court judges are different from other elected officials, Minnesota's Announce Clause, as now interpreted by its supreme court, goes too far resulting in elections without campaigns.

Unidentified Justice: Could we find out from you just what the Announce Clause prohibits that isn't already prohibited by the Pledges and Promises Clause, as it's been interpreted?

Mr. Bopp: Yes, Justice O'Connor.

The Announce Clause prohibits, according the decision of the Eighth Circuit, any general... allows general discussions of the law, while it prohibits any implying of how a person would rule... a candidate would rule, on an issue or case before the Court.

Unidentified Justice: How does that differ, then, from the Pledges or Promises Clause?

Mr. Bopp: The Pledges and Promises Clause prohibits any pledge or promise that... other than faithful performance of duties in office.

The difference between "announce", the plain language of the clause, and "pledge or promise"... "announce" is simply making known, is one of the formulations of the Eighth Circuit, or implying; while "pledging or promising" is making a commitment on how you would rule in a future case.

Unidentified Justice: But you think the Announce Clause, even as interpreted by the Eighth Circuit to be the same as the ABA canon, goes beyond that?

Mr. Bopp: Well, Your Honor, there is one aspect of the current 1990 ABA canon that has... was not discussed by the Ninth Circuit or by the ABA brief.

And that--

Unidentified Justice: And where does that appear in your brief?

Where is the ABA canon we're talking about?

Where is it?

I want to look at it while you're talking about it.

Mr. Bopp: --I do not have a reference to the ABA canon, Your Honor.

I apologize.

The ABA canon states that a... the 1990 ABA canon states that a candidate may not make statements to commit, or appears to commit in deciding cases, controversies, or issues likely to come before the Court.

While the ABA and the Eighth Circuit seem to imply that the 1990 canon was similar, if not the same, as the 1972 canon, they did not discuss the difference between the words "announce" and "commit".

"Commit", if you look in the dictionary, says "pledge".

And, thus, the 1990 canon appears to be more narrow under plain--

Unidentified Justice: Well, the Eighth Circuit did say that it was... that Minnesota's provision is the same as the ABA canon, right?

Mr. Bopp: --It did, Your... it did, Your Honor.

Unidentified Justice: And the ABA canon prohibits candidates, judicial candidates, from making statements that commit or appear to commit a candidate.

Mr. Bopp: Yes.

Unidentified Justice: And that looks very much like the Pledge or Promise language.

I... I don't know how we should interpret this.

Mr. Bopp: Well, one of the problems, Your Honor, is that the January 29th opinion of the Minnesota Supreme Court interpreting the Announce Clause adopted the Eighth Circuit opinion and its interpretations.

Unidentified Justice: Right.

Mr. Bopp: Unfortunately, the Eighth Circuit had conflicting statements about the scope of the interpretation that it was announcing.

Unidentified Justice: Well, you were... you appear to be arguing, in your brief at least, that the Announce Clause is unconstitutionally vague.

Mr. Bopp: Yes, Your Honor.

Unidentified Justice: Is that your argument you're making?

Mr. Bopp: Yes, we are.

Unidentified Justice: But did you make that argument below?

Mr. Bopp: Yes, we did, as to the interpretation proffered in the district court, adding the words

"likely to come before the Court."

But where we are now, Your Honor, is that the Eighth Circuit sua sponte added other glosses to this canon, even though it was not advocated by any of the parties.

Unidentified Justice: You didn't include a vagueness challenge in your petition for certiorari, did you?

Mr. Bopp: Yes, we did.

Unidentified Justice: Is it in the question on which we granted cert, do you think?

Mr. Bopp: No, but it is encompassed within the violation of the First Amendment that we allege.

Unidentified Justice: But I wouldn't have thought vagueness was a First Amendment issue.

Mr. Bopp: Well, in the context of First Amendment protected speech, a... something that chills First Amendment speech, because of... it is a vague rule, and therefore does not provide a bright line necessary for the exercise of that speech, that it constitutes a First Amendment violation.

Unidentified Justice: One of the statements of the Eighth Circuit... and I don't have the citation to the brief; I have the citation to the Federal Third... 247 F. 3d 881.

It says that the Announce Clause applies only to discussion of a candidate's predisposition on issues likely to come before the candidate if elected to office.

Mr. Bopp: That is one of the three constructions.

Unidentified Justice: If we could... would you agree that that's perhaps the narrowest of the three constructions?

I want to find what might be the most likely statement to survive review and then have you discuss that, because I take it that you would not be... you would not agree that even that is constitutional.

Mr. Bopp: It is not the narrowest, Your Honor, because it uses the word "issue".

There are other formulations--

Unidentified Justice: Yes.

Mr. Bopp: --in the Eighth Circuit case where they use the word 45a of the petition... the petition appendix.

It prevents candidates from, quote,

"implying how they would decide cases."

end of quote.

And they also, on page 52a of the appendix to the petition, say that, quote... that the canon, quote,

"applies only to discussions of a candidate's predisposition on issues."

as you've quoted, and then finally concludes on page 53 with the statement that it prohibits candidates, quote,

"only from publicly making known how they would decide issues."

So we have conflicting interpretations of--

Unidentified Justice: Well, let's take the... let's take the last one.

I take it, if that were the authoritative narrowing constructing that were before us, you would disagree with its constitutionality.

Mr. Bopp: --Yes, Your Honor.

Unidentified Justice: Would you agree that that would be a constitutional standard if it were part of a code of judicial ethics that applied to the judge after the judge was on the bench?

Mr. Bopp: No, and... but I believe that this canon does apply to judges once they are elected and on the bench.

Unidentified Justice: Well, are judges, after they are on the bench, subject to, all of the same rights that they have before they go on the bench, insofar as making public comments?

Mr. Bopp: No, they may be limited in a number of different ways, Your Honor, that are necessary to advance compelling interests.

Unidentified Justice: Well, why is it that, if an election is in July, the State can, under your view, not prohibit statements in June before he's elected, but they can prohibit the statements in August, after he's elected?

Mr. Bopp: Well, Your Honor, the First Amendment applies... has its most urgent application in campaigns for election, and it is... and while both judges and judicial candidates may be limited in their speech, it has never been held that simply announcing your views on a disputed legal or political issue constitutes an indication of partiality such that would justify, for instance, recusal or disqualification.

Unidentified Justice: But I thought you said it would be okay.

Then maybe I didn't understand your answer.

I thought you said that the kind of limitation that Justice Kennedy referred to would be all right for sitting judges, that you could prohibit sitting judges from letting their views be known on any controversial issues.

Mr. Bopp: Well, then I misspoke, if that was your understanding.

Unidentified Justice: Like the incorporation doctrine or substantive due process and so forth--

Mr. Bopp: Canon 4--

Unidentified Justice: --you think you could prohibit judges from discussing those matters.

Mr. Bopp: --No.

Canon 4... and in fact, Canon 4(b) of the Minnesota canons encourages judges to propose changes in the substantive and procedural law, even individually.

Unidentified Justice: Sitting judges... sitting judges run for election.

So whatever rights the contender would have in an election, I assume that the sitting judge who was running for reelection would have those same rights, in your view.

Mr. Bopp: We believe that they should.

Unidentified Justice: Because the sitting judge could not be restricted, could he or she, in a way?

Mr. Bopp: Well, sitting judges are restricted, for instance, from commenting on pending cases that are pending before them, quite properly.

But here we are talking about stating general views about the law.

Unidentified Justice: So sitting--

--You wouldn't object to candidates being prohibited from commenting about particular cases either, would you?

Mr. Bopp: No, I would not.

Unidentified Justice: I didn't take your objection to be that you say, you know, that there's a case pending in the courts, if I were appointed, I'll tell you how I would decide that case.

You--

Mr. Bopp: We--

Unidentified Justice: --wouldn't permit that, would you?

Mr. Bopp: --We believe that that can properly be--

Unidentified Justice: I thought you gave examples, or your... one of the briefs gave examples of commenting on specific decisions that had been rendered by the Minnesota Supreme Court, and you said that restraint on that comment was impermissible.

Mr. Bopp: --Yes.

Unidentified Justice: Am I not right?

Mr. Bopp: Yes.

That is our position.

Unidentified Justice: So you're making--

--That was a past case.

That was a distinction you're making between past cases and pending cases in the court that are likely to come before you if you're elected.

Mr. Bopp: Yes, I... the First Amendment protects discussion of past cases.

However, the Eighth Circuit opinion only allows discussion of past cases while the enforcement authorities, specifically the Office of Lawyers Professional Responsibility, had previously said that you could criticize those opinions.

Unidentified Justice: Well, supposing that... supposing that Minnesota... the Minnesota Supreme Court had announced that its Fourth Amendment was more protective than the federal Fourth Amendment and a candidate running for that court saw that several cases, the evidence had been suppressed in Minnesota courts, the defendant was acquitted, so he said,

"I think we should go back to the idea that our Fourth Amendment is the same as the federal Fourth Amendment."

Would that be permitted under this rule?

Mr. Bopp: Under the Announce Clause?

Unidentified Justice: Under the Announce Clause.

Mr. Bopp: Not if it's considered implying how you would rule in a future case.

Unidentified Justice: But do we know that... do we... is there any mechanism for getting a clarification?

And the big problem in this case is this is a frontal attack, and so we have no specific examples.

And you can say,

"I think this would fit, and I think that wouldn't fit."

Is there any mechanism in Minnesota for seeking clarification?

For example, whether the Minnesota Supreme Court's current rule is, indeed, the ABA's 1990 rule?

Mr. Bopp: You can seek a private advisory opinion that is not binding on either the office or the board.

And petitioner Wersal sought such an opinion after suit was filed regarding other matters, and they declined to provide that advice.

Unidentified Justice: Mr. Bopp, I would assume your answer would be that if it's too fuzzy for us to understand what it means in order to rule upon its constitutionality, it's also too fuzzy for a judicial candidate to know what it means in order to conform his conduct to it and, therefore, unconstitutional.

Mr. Bopp: Yes, sir, Your Honor, not only to candidates, but this canon binds the family members, the supporters of the candidate.

If they say anything that is viewed to violate this construction... this new construction of this rule, then the candidate, him or herself, is subject to discipline or removal from office.

Unidentified Justice: Well, I still want to make clear your position.

Your position is... is that the judge can, after the judge's election, be disciplined, sanctioned for certain remarks that he could not be sanctioned for before the election.

Is that correct?

Mr. Bopp: No, Your Honor, and if I gave you that impression, I apologize.

Unidentified Justice: In other words, the rule--

Mr. Bopp: I am not--

Unidentified Justice: --post and pre-election, the rights--

Mr. Bopp: --The rule--

Unidentified Justice: --to speak are the same.

Mr. Bopp: --The rule is the same.

But I think the point I was making was that once a judge assumes office, there are restrictions on, for instance, his ability to discuss a pending case that is not imposed upon a lawyer that is not involved in the case in any way.

Unidentified Justice: Well, do you claim--

Mr. Bopp: So then--

Unidentified Justice: --All right.

Then your position is that there is a difference as it applies to pending cases as to which a sitting judge has to... to which a sitting judge has been assigned.

Mr. Bopp: --Yes, there are specific ethical--

Unidentified Justice: And--

Mr. Bopp: --canons that apply in that.

Unidentified Justice: --And that's all.

Mr. Bopp: And that's appropriate--

Unidentified Justice: Now--

Mr. Bopp: --an appropriate limit.

Unidentified Justice: --are there limits on what the candidate can say?

Mr. Bopp: Yes.

I--

Unidentified Justice: And those are what?

Mr. Bopp: --It's in the realm of Pledges and Promises.

It would apply to candidates whether they're sitting judges or not, and that is that a candidate for judicial office shall not pledge or promise certain results in deciding a particular case or issue in a case without regard to the law or facts of the case.

Unidentified Justice: Suppose he said,

"There are a lot of criminal cases pending."

and, to take the Chief Justice's hypothetical,

"we've gone too far in interpreting the Fourth Amendment, and I'm going to be more strict."

In your view--

Mr. Bopp: I think that's a--

Unidentified Justice: --that could be prohibited.

Mr. Bopp: --No, that is allowed, Your Honor, because he's not promising certain results in a particular case.

That is, again--

Unidentified Justice: He says,

"I promise when these cases come before me, this is what I'll do."

Mr. Bopp: --Then that is a pledge or promise of an outcome.

Unidentified Justice: And in your view, that can be prohibited.

Mr. Bopp: Yes, because there is a--

Unidentified Justice: Well, I'm surprised you take that view.

Mr. Bopp: --Well, Your Honor, there is a public perception of the impartiality of the judiciary that I think properly can be taken into account.

Unidentified Justice: Well--

Mr. Bopp: And I think this rule announces a rule that is consistent with the judge's obligation to decide cases in accordance with his or her role.

Unidentified Justice: --Well, that's an extremely fine line you're drawing, it seems to me, because I think a moment ago, in response to my question, you said that a candidate would be prohibited, and wrongly prohibited, under your view... on your view of it and from saying that Minnesota should adopt the federal Fourth Amendment standard rather than the more liberal Fourth Amendment standard that the Supreme Court of Minnesota hypothetically had it.

You say that a candidate ought to be allowed to do that, but he isn't under the Minnesota rule?

Mr. Bopp: He is not, under the... well, to the extent that we know what the Announce Clause means--

Unidentified Justice: Yeah.

Mr. Bopp: --with this conflicting formulations under the Eighth Circuit opinion, talking about cases or issues... talking about, implying, or making known... to the extent that we know the rule, it would appear that such a statement would be prohibited--

Unidentified Justice: And you--

Mr. Bopp: --because it would imply what he would rule in the future.

Unidentified Justice: --And you say that the First Amendment prohibits that?

Mr. Bopp: No, I'd say the First Amendment protects talking about prior decisions.

Unidentified Justice: What about--

Mr. Bopp: And one of the problems is we're talking about the rule... the Minnesota rule versus--

Unidentified Justice: --Yeah.

Mr. Bopp: --other proposed rules.

Unidentified Justice: But if--

--What about comment on a... by a candidate who is not yet a judge on a case which is then pending before the court?

In your view, can the State prohibit the candidate from saying,

"I've been reading about this case."

"I know what the evidence is, and I believe so and so should be convicted, and I think the sentence ought to be the following."

Could the State, consistently with the First Amendment, prohibit that kind of a comment?

Mr. Bopp: Well, there would seem to be, under Gentile, more leeway for a lawyer not in a pending case to discuss a pending case.

Unidentified Justice: What's the answer to my question?

Mr. Bopp: I think... I think it could not be prohibited.

Unidentified Justice: In the question that the Chief Justice asked, suppose the judge said,

"I pledge and promise that if you elect me, I will vote in every Fourth Amendment case to restore the law to what it was."

That's a pledge and a promise, which I thought your argument started out saying you accept that the pledge or promise is a valid restriction--

Mr. Bopp: I do, Your Honor.

Unidentified Justice: --that you can't go on that to the Announce.

So suppose that instead of... the Chief Justice suggested,

"I think it would be a good idea if the court went back there."

--but if he said,

"I pledge and promise that I will vote that way--"

Mr. Bopp: That is a classic pledge and promise that I think can be appropriated prohibited under the First Amendment.

Unidentified Justice: --As to issues and not as to particular cases.

Mr. Bopp: As both to issues and cases.

Unidentified Justice: So that you... you can't disable yourself from being--

Mr. Bopp: Open minded.

Unidentified Justice: --persuaded by counsel that the views you've held your whole life over the incorporation doctrine, turn out to be wrong.

Mr. Bopp: Yes.

And while judges certainly have views, and they announce these views in numerous different ways, if they are binding themselves not to have an open mind and to decide a case in advance, then that is a violation of the oath, and that type of pledge or promise should be and can be prohibited under the First Amendment.

Unidentified Justice: Is this different from that?

That is, I read through the Minnesota Bar Association's brief, the ABA's brief, and portions of the Brennen brief.

All right?

They all suggested to me that this ethical rule, like all ethical rules, is vague, interpreted by interpretive opinions, of which there are many.

I mean, there are two pages of them in these briefs.

Now, as I understood it, it comes down to an effort to do just what I did in my own Senate confirmation hearing, to say,

"I will try to reveal my judicial philosophy."

"I will try to stay away from anything that is going to commit myself or appear to commit myself about how to decide a future case."

All right.

Mr. Bopp: And I agree.

Unidentified Justice: Now, if that's what they're trying to do... do you agree that is what this is trying to do?

And, second, if that is what they're trying to do, why is that unconstitutional?

Mr. Bopp: If it amounts to a pledge or a promise--

Unidentified Justice: No, it doesn't.

I used the words that... of the ABA brief.

I've used the words... I'm referring to the briefs to call those arguments to your mind.

What they say this comes down to is you cannot commit yourself or appear to commit yourself as to how you will decide a particular case or issue if it arises.

But you can, and there are two pages of this in the Minnesota Bar brief.

I'm just trying to call that to your mind--

Mr. Bopp: --Thank you.

Unidentified Justice: --of all the things you can discuss: judicial philosophy, character, this and that.

There were two pages of them, and they're all quotes... in quotes.

All right.

So, one, am I correct in my interpretation?

Mr. Bopp: Yes.

Unidentified Justice: Two, if I am, why does the Constitution forbid it?

Mr. Bopp: If the word "commit" means "pledge", then I think you're correct in--

Unidentified Justice: No, I told you what it means.

"Commit" means "commit".

We can't go more than the words "commit" or "appear to commit", other than to illustrate them by example.

And the Bar Association brief contains 18 examples that have been given.

They're all in quotes.

They come from an authoritative source.

So that's where I am in what this means.

Am I right?

And if I am right, what's wrong with it?

Mr. Bopp: --Well, Your Honor, what is wrong with it--

Unidentified Justice: But first, am I right, in your opinion?

Mr. Bopp: --you're not right.

And what is wrong with it is that the ABA suggested that "commit" means the same thing as "announce".

And what I... my course of my argument is that ABA canon is different than the current Announce Clause.

In fact, it's--

Unidentified Justice: All right, so if you're saying the word is "announce", and all these briefs and the bar association are wrong when they say that means commit or appear to commit, on that view, what should I do with this case?

Mr. Bopp: --You should strike down the Announce Clause, because it is impossible... hopelessly impossible to know what is included within the rule and what is outside the rule.

That, and not only did the Eighth Circuit use different formulations of the rule that mean different things, in terms of its scope and application, but it also had exceptions to the rule, discussion... a general discussion of case law or a candidate's judicial philosophy, but with the proviso that if you imply how you will rule in a particular case, then you have violated the rule.

Unidentified Justice: And on an issue on a particular case.

Mr. Bopp: An issue, including--

Unidentified Justice: Can I just follow that up for one second?

All right, now take the other assumption.

Let's assume that it does mean, as the ABA says, "appear" or "appear to commit".

On that view of it... and assume that I'm right.

I know you think I'm wrong on that.

Assuming that I'm right--

Mr. Bopp: --With all due respect.

Unidentified Justice: --then is it constitutional, in your opinion?

Mr. Bopp: No, because of the "appear to commit" language.

Unidentified Justice: So you think the ABA can and is, itself, unconstitutional.

Mr. Bopp: As I interpret it, yes, because the "appear to commit" takes us back away from a bright line of a pledge or a promise into the realm of implying what you are saying.

And there--

Unidentified Justice: What is the ABA's position on judicial elections?

Mr. Bopp: --They are not in favor of judicial--

Unidentified Justice: I didn't think they were.

[Laughter]

But you're submitting this case to us on the proposition that, under the First Amendment, a judicial candidate can be subjected to restraints on speech that other... that are inapplicable to other candidates.

Mr. Bopp: --I believe that they can, Your Honor, because judges have a dual role.

One role is to make law, and particularly state court judges making common law, but they also have a duty to decide cases impartially.

So while they are running for office, in order to respect judicial impartiality, they should not be pledging to violate the oath.

That is promising now how to decide a case in the future when it comes before--

Unidentified Justice: Well, how does this play out with sitting judges who write opinions saying,

"In my view, for example, I think the death penalty is unconstitutional?"

There it is for everybody to see.

And presumably in a state like Minnesota, that judge will come up for election again or in another state for retention election.

You don't think it's... can that be prohibited--

Mr. Bopp: --No.

Unidentified Justice: --somehow?

Mr. Bopp: No.

No, it may not.

Unidentified Justice: And that judge has expressed a view that presumably the judge will follow in a future case.

Mr. Bopp: But that is... but that is different from declaring or announcing that you have a closed mind as to any future--

Unidentified Justice: No.

I don't know, if it's thoroughly expressed.

Now, if the next case comes along involving that very issue, can the judge be changed for bias?

Mr. Bopp: --No.

No, you may not be recused, and due process is not violated.

Unidentified Justice: But what if a candidate says not,

"I pledge that in every case I will say vote against the death penalty."

but,

"I have real doubts about the death penalty jurisprudence."

I mean, I don't think Minnesota has a death penalty, but--

Mr. Bopp: No, it doesn't.

Unidentified Justice: --let's assume it does.

"And I think it probably should change."

Is that permissible under this rule?

And if the rule says it's not permissible, is that statement protected by the First Amendment?

Mr. Bopp: I'm sorry.

Under the Minnesota rule or my rule?

Unidentified Justice: Under the Minnesota rule.

Mr. Bopp: It... well, it's very difficult to know, Your Honor.

Unidentified Justice: Okay, well, under your rule.

Mr. Bopp: Under our rule, it would be allowed.

And, in fact, judges are encouraged to do... make proposals just like that under these canons.

Unidentified Justice: Now I don't understand what you say the Minnesota rule is.

I would have thought your answer would be,

"That's probably okay under the Minnesota rules."

because he only says probably...

"I think it's probably, you know, unconstitutional."

Mr. Bopp: Under the Minnesota rule if you simply imply how you might rule--

Unidentified Justice: Well, it doesn't.

It says, "I have doubts about it", according to the Chief Justice, "I have doubts about it".

I think that doesn't necessarily imply... but I thought--

Mr. Bopp: --Well, it's--

Unidentified Justice: --I thought--

Mr. Bopp: --It's hard to know.

Unidentified Justice: --But I thought that your position with regard to judicial opinions is... is that it is perfectly okay for a sitting judge to make known to the public his view on something like the death penalty when he does it in an opinion and, therefore, that can be out there.

Mr. Bopp: Yes, it is--

Unidentified Justice: Subject to criticism, indeed.

Mr. Bopp: --Yes--

Unidentified Justice: But somebody who's running against him in an election cannot let be known what his view is on the death penalty.

Mr. Bopp: --It is perfectly appropriate for a judge to do that in an opinion or in speeches or a law review article.

Unidentified Justice: In speeches?

You mean the judge could go out and... a sitting judge can go out and make a speech and say,

"In the next death penalty case to come before me, I'm going to vacate."

"I'm going to vote to vacate the death penalty."

"I don't care what the argument is."

Mr. Bopp: Then not that statement.

If he made that statement, he'd be subject to recusal and a proper application of--

Unidentified Justice: Okay, well--

Mr. Bopp: --the pledge rule.

Unidentified Justice: --Okay.

Well, then what he can say in speeches certainly is less than what he can say in a judicial opinion in which he says,

"I vote to vacate the death penalty because I believe it's unconstitutional."

I mean, there's some line between them.

Mr. Bopp: Yes, I would think he would.

He does, Your Honor.

And may I reserve the balance of my time?

Unidentified Justice: Very well.

Mr. Gilbert, we'll hear from you.

ORAL ARGUMENT OF ALAN I. GILBERT ON BEHALF OF THE RESPONDENTS

Mr. Gilbert: Mr. Chief Justice, and may it please the Court: I would like to take the opportunity to try to clarify some of the questions and answers that have been provided as to what the construed rule in Minnesota means.

And I refer the Court to page 53a, of the cert petition appendix, where the Eighth Circuit stated the definitive narrow construction of this rule which says that the rule only prohibits candidates from--

Unidentified Justice: Whereabouts on the page?

Mr. Gilbert: --The beginning of the second paragraph, Your Honor.

It only restricts judicial candidates from publicly making known how they would decide issues likely to come before them as judges.

That is the narrow construction of this Eighth Circuit opinion.

That is the construction that's being applied by the two boards that I represent, and that is the construction that has been incorporated in an authoritative order by the Minnesota Supreme Court.

Unidentified Justice: What about the example I posed to your opponent?

Someone says,

"I think the Minnesota Supreme Court's ruling on the Fourth Amendment, the state Fourth Amendment being broader, is wrong, and I... if you will elect me as a judge, I would try to change that around."

Mr. Gilbert: Your Honor, this is where the record is very clear as to what Mr. Wersal has done.

And in response to your question, the candidate could criticize a prior decision of a judge, but could not say as to a future case how that candidate would decide the case.

And that's precisely--

Unidentified Justice: So let me put that to the test.

If I say,

"I think the decision of the Supreme Court of Minnesota two years ago saying that the Fourth Amendment... state Fourth Amendment protected more than the federal Fourth Amendment is wrong."

he could do that, but he couldn't say,

"If you elect me to the Supreme Court, I would carry out my view."

Mr. Gilbert: --Well, that would be a future case.

And there's other considerations--

Unidentified Justice: Well, he told me he couldn't even say,

"I think that opinion is wrong."

"And that is not my position concerning the meaning of the Fourth Amendment--"

Mr. Gilbert: --Your Honor--

Unidentified Justice: --"# in Minnesota".

Mr. Gilbert: --That's not correct, Your Honor.

I refer you to the record in this case and what Mr. Wersal has said in his literature.

If you look at the first volume of the Joint Appendix, pages 34 to 38, as well as pages 86 to 91, they contain the actual statements that Mr. Wersal made as part of his campaign.

Unidentified Justice: What pages?

Mr. Gilbert: 30... let's see... 34 to 38, and 86 to 91.

And look what he said.

First of all, he talked about his judicial philosophy.

He has said that he can't talk about his judicial philosophy.

He did.

He said, "I'm a strict constructionist", and he criticized the Minnesota Supreme Court for being a judicial activist.

But more--

Unidentified Justice: What does that mean?

I mean, that's so fuzzy, that doesn't mean--

Mr. Gilbert: --Well, but--

Unidentified Justice: --that doesn't mean anything.

It doesn't say whether you're going adopt the incorporation doctrine, whether you believe in substantive due process.

It is totally imprecise.

It's just nothing but fluff.

Mr. Gilbert: --And candidates can say that.

And that's the point.

Unidentified Justice: Can they say anything more than fluff?

Can they say anything that has any meaning?

Mr. Gilbert: Absolutely.

And what they can do... look at what Mr. Wersal--

Unidentified Justice: But what about my example?

Mr. Gilbert: --Your example, Your Honor, the candidate can, as Mr. Wersal did, criticize a prior decision of the Court.

And that's very clear from what has happened in the Wersal case.

What the candidate cannot do is say that,

"If I'm elected, I'm going to overturn that decision."

Unidentified Justice: Does that dichotomy make any sense at all?

Mr. Gilbert: Well, it does in the sense, Your Honor, that there's different dynamics involved once a judge is elected and has to overturn a decision that's already precedent in the State of Minnesota.

Unidentified Justice: So a candidate says,

"This is the worst decision that's come down since Dred Scott, it's a plague on our people, it's an insult to the system, but I'm not telling you how I'll vote."

[Laughter]

Mr. Gilbert: Your Honor, that's the point.

Unidentified Justice: It's more than that.

You assert that that does not, within the language that the Supreme Court has adopted, it does not imply how he will vote on that issue at a future date.

He says,

"It's the worst case we've ever done."

That doesn't imply how he's going to vote on it?

Mr. Gilbert: Well, that might well imply whether he's going to overturn it.

But what the candidate can say and what Mr. Wersal said... if you look at the criticism that he leveled at these decisions of the Minnesota Supreme Court, he said just as you indicated, Justice, that, "These decisions are"--

Unidentified Justice: What are you reading?

Where are you reading from?

Mr. Gilbert: --If you look at pages... page 36, for example, of the... this is of the Joint Appendix... he says, on abortion,

"The Court ordered the State must use welfare funds to pay for abortion despite state law to the contrary."

"The dissenting judge remarked."

et cetera.

This is under the topic of "Examples of Judicial Activism".

But then he goes into greater detail on page 38.

Unidentified Justice: But is the statement at page 36 that you read... is that proscribable under the State's rule?

Mr. Gilbert: No.

And that's the point.

What has happened here, Your Honor, is that there was a complaint filed against Mr. Wersal for all of this campaign material.

And the then-director of the Lawyers Board, Marcia Johnson, in an opinion, on pages 20 and 21 of this appendix, said that the statements made by Mr. Wersal are not proscribable.

And that's even before the rule is narrowed.

And if you look at page 21, the executive director said specifically that Mr. Wersal can criticize prior decisions of the Court.

And that's consistent with what the Board on Judicial Standards did in--

Unidentified Justice: What do you say--

--May he also, at the same time as they criticized the decision, say,

"I do not believe in stare decisis?"

Mr. Gilbert: --Yes.

He can't, because that is--

Unidentified Justice: Well, then isn't he saying how he's going to rule on the case then?

Mr. Gilbert: --Well, Your Honor... it might be, Your Honor.

People might be able to imply from it, but it's still... the distinction is--

Unidentified Justice: Might be able to imply that I don't believe in stare decisis and I think this case is wrong.

[Laughter]

Pretty clear, I think.

Mr. Gilbert: --No, and I understand what you're saying, Your Honor.

The distinction that's made, if you look at all the cases that have dealt with this issue, is a distinction between past cases on one hand and then pending and future cases on another.

Unidentified Justice: As long as you're silent on your views on stare decisis, that's a fine distinction.

But if you do reveal your views on stare decisis, that distinction is meaningless.

Mr. Gilbert: Perhaps.

There could be other issues that come up in terms of a case that would be a vehicle to overturn particular decisions... standing, things of that kind.

Unidentified Justice: So now you're saying there's a distinction between issues and cases.

And I'm saying you're categorically stating your view about a particular issue, as the Chief Justice's example states, and you also categorically state,

"I think stare decisis has no place in constitutional adjudication."

Can he do that?

Mr. Gilbert: Your Honor, again, the... no, under the State's interpretation of the rule.

And I understand your point.

It is a fine distinction.

But what the State is trying to do is protect the integrity of the judiciary at that point.

And to the extent--

Unidentified Justice: This protects its integrity?

Mr. Gilbert: --Your Honor, we think so.

And the reason for that is that--

Unidentified Justice: I mean, it's just a game.

It's just a dance, you know--

Mr. Gilbert: --Well, this is--

Unidentified Justice: --I don't say anything about stare decisis and it's okay.

If I say something about stare decisis, it's not okay?

Mr. Gilbert: --Well, again, Your Honor, I understand the hypothetical.

This is a hypothetical that is kind of on the fringe.

I would agree with you.

But at the same time, most of the situations are going to be clear, are going to be--

Unidentified Justice: Well, it is such a problem to know exactly what the provision covers now.

It isn't clear to me.

And what we end up with at the end of the day is a system where an incumbent judge can express views in written opinions, and perhaps otherwise, as well, and yet a candidate for that office is somehow restricted from discussing the very same thing in the election campaign.

That's kind of an odd system, designed to what?

Maintain incumbent judges, or what?

Mr. Gilbert: --No, it's not, Your Honor.

In fact, that is not correct in terms of the effect of that situation.

Again, if you look at page 20 of the Joint Appendix, what the executive director of the Lawyers Board has said is that an incumbent judge can criticize the prior decision of that sitting judge.

So that the challenger actually has greater opportunity than an incumbent judge, because an incumbent judge has a record of decisions.

Unidentified Justice: Do you... you misspoke, I think.

You meant the challenger--

--You did--

Mr. Gilbert: The challenger.

I'm sorry.

Unidentified Justice: --the challenger, who is not a judge, can criticize the specific decision of the judge who wrote it.

Mr. Gilbert: That's correct, Your Honor.

Unidentified Justice: So they're equally free at the least to discuss the specific past cases.

Mr. Gilbert: At the least.

And I would submit that the challenger is in a better situation because of the--

Unidentified Justice: All right.

Can I ask you this question--

Mr. Gilbert: --Yes.

Unidentified Justice: --because I understand that... I have two questions, really.

One is the line that's being... that you're trying to draw, everyone would concede is a very difficult one to draw, but it is the line that I tried to draw.

Mr. Gilbert: Yes.

Unidentified Justice: Now, what would happen if, instead of my being in the Senate, I had been in an election campaign, and I was trying to draw this very line between commitments to future cases, specific ones, and general judicial philosophy.

And suppose my opponent, after, said,

"Breyer made a mistake."

"He didn't get it right."

but I was in good faith.

What could happen, or would likely happen, to me under this rule?

Mr. Gilbert: As a... I'm sorry, as a sitting judge, Your Honor?

Unidentified Justice: Well, I then... suppose I won.

Fine.

I've won the election.

My opponent... what I'm trying to understand is what are the consequences?

It is, after all, an ethical rule, and ethical rules are often blurry.

Mr. Gilbert: Yes.

Unidentified Justice: And I want to know what would likely happen to a person who makes a mistake in drawing this very fine line, assuming that it's in good faith.

Mr. Gilbert: Your Honor, the Board on Judicial Standards or the Lawyers Board would have jurisdiction with respect to a violation which sounds like a technical violation, as you describe it, and could impose some discipline, but I would suspect that discipline would be very minute, if at all--

Unidentified Justice: Could a state--

Mr. Gilbert: --under those circumstances.

Unidentified Justice: --make a violation of the provisions you described a criminal offense?

Mr. Gilbert: No, Your Honor.

These are not criminal statues.

Unidentified Justice: But could a state do it under the First Amendment?

Is there any authority you have for the proposition, that can... a state can impose a civil sanction, but not a criminal sanction?

Mr. Gilbert: I'm not aware of any authority that would allow a criminal sanction for such a thing.

Unidentified Justice: Can I ask you one other question?

That's not my question.

Is there any authority that a state, under the First Amendment, is free to impose a civil sanction but not a criminal sanction on particular speech?

Mr. Gilbert: I'm not aware of authority to that effect either, no.

Unidentified Justice: This is a technical question, but the sentence you started out reading from the Eighth Circuit's opinion is not identical to the ABA canon.

And obviously if this rule differs from the ABA canon and is stricter, one could say there's a less restrictive alternative, namely the ABA canon.

And so I'm quite concerned about how to deal with that problem.

Do I assume that, in fact, Minnesota does mean it's indistinguishable from ABA canon, which is what the ABA says?

Or what your opponent says?

How do I deal with that?

Mr. Gilbert: Your Honor, our position is, just as the ABA indicated, that our rule is the functional equivalent of a commitment clause.

Unidentified Justice: The Minnesota Supreme Court turned down the ABA rule, the ABA rule... we're talking... they're both ABA rules.

Minnesota now has on its books the 1972 rule.

The 1990 rule is the one that you said is the functional equivalent of the current rule.

And yet the Minnesota Supreme Court considered and turned down that rule.

So that's one of the aspects of this case that makes it very fuzzy.

The court that turned it down now says,

"We agree with the Eighth Circuit."

And you're telling us that the Eighth Circuit has adopted, essentially, the ABA's current rule.

Mr. Gilbert: Yes, Your Honor, and that is the case, and you are right.

Back in 1995, there was discussion of adoption of the commit clause by the Minnesota Supreme Court.

It did not occur at that time.

There has been a lot that has evolved over the last seven years, Your Honor, and the Minnesota Supreme Court has made the decision in its January 29th, 2002, order that this construction by the Eighth Circuit is the construction that they are going to place on their clause.

Unidentified Justice: Whatever that is.

Mr. Gilbert: Well, this construction, Your Honor, is, for all practical purposes, identical to the commitment clause.

And--

Unidentified Justice: Mr. Gilbert, may I ask--

Mr. Gilbert: --Yes.

Unidentified Justice: --a question based on what you said about stare decisis?

You say... have said consistently you can discuss your judicial philosophy.

Well, why wouldn't one's position on stare decisis fall under judicial philosophy?

Mr. Gilbert: I think it would, Your Honor.

Unidentified Justice: So that... so you're changing back then, because you said a while ago that stare decisis... if you said,

"I think that decision about the Fourth Amendment was wrong, and I don't believe in stare decisis."

you said you couldn't put those two together.

Mr. Gilbert: Your Honor, you can put them together.

I think the question was, could someone then conclude from that what the ramifications would be if that particular candidate came to the Supreme Court, for example, on what the candidate would do with respect to that decision... whether the candidate would overturn or not.

Unidentified Justice: And your answer was it would imply how he's going to vote and, therefore, would not be--

Mr. Gilbert: Again--

Unidentified Justice: --would not be acceptable, right?

Mr. Gilbert: --Yes, Your Honor, with the distinction being to protect the integrity of the judiciary.

Unidentified Justice: Well, let me ask about that.

You know, in evaluating whether a state has demonstrated the kind of significant interest necessary to abridge speech, it seems to me we have to look at the entirety of the state law to see what interest it's pursuing.

I, frankly, am absolutely befuddled by the fact that Minnesota wants its judges elected... that's its constitutional provision... and then enacts statutory provisions that are intended to prevent the electorate from knowing, even by implication, how these candidates are going to behave when they get on the bench.

It seems to me a total contradiction.

And, indeed, it looks to me like a legislative attempt to simply repeal Minnesota's constitutional provision providing for the election of judges, which is a neat and easy way to get rid of it if you can't do it by plebiscite.

Why does it make any sense to vote for a judge in an election, a judge who is not able, even by implication, to tell the electorate what kind of a judge he would be?

Mr. Gilbert: Well, but, Your Honor, that's the fallacy in that statement, is that a candidate can tell the electorate what kind of candidate they are.

The only thing that the candidate cannot say... it's a very limited restriction... and that is, how I am going to decide a future case.

Unidentified Justice: Not a particular... well, no, not just a future case, a future issue... any, not a particular case, but any issue--

Mr. Gilbert: And--

Unidentified Justice: --how I will vote on the Fourth Amendment situation, how I will vote on the incorporation doctrine.

I can understand your saying, he shall not commit himself,

"I promise to vote this way."

No judge should do that.

He should be able to be persuaded that he's been wrong.

But to say that my current view is that the Fourth Amendment should be just like the federal Fourth Amendment, and stare decisis in constitutional matters is not a doctrine that I think is very strong... it seems to me you ought to be able to say that.

Mr. Gilbert: --And they can say that.

I think the difference of opinion we have here is whether they can go the extra step and just say,

"And I would try to overturn the decision if I'm elected."

Unidentified Justice: Well, if that--

Mr. Gilbert: I have to--

Unidentified Justice: --if that indicates a disqualification or a lack of temperament for the bench, the voters can decide that.

The bar association and the judges can come out and say,

"We have a candidate running who doesn't have the right judicial temperament."

and the voters decide.

That's the way elections work.

Mr. Gilbert: --They can do that, but I submit to you, what happens if that judge wins?

What happens if that judge wins and the litigants come before that judge who has prejudged that case?

Unidentified Justice: Well, I suppose the people have said what kind of judges they want.

Mr. Gilbert: Oh, and it's all of a sudden majority opinion?

Unidentified Justice: Why is that any worse than litigants who come before a judge who's already sitting and who has said in a prior opinion that he thinks the Fourth Amendment in Minnesota should be interpreted the same way the federal Fourth Amendment is?

Why--

Mr. Gilbert: Because in--

Unidentified Justice: --is that any different?

Mr. Gilbert: --Because in a prior opinion, due process was accorded, because the judge actually heard the argument of the litigants, heard the facts and the applicable law.

Unidentified Justice: You mean a judge can't have an opinion without hearing from all sides and going in briefs and so forth?

Mr. Gilbert: Absolutely.

Unidentified Justice: Well, what if... even if he gives a speech, does he have to first have this sort of vetting?

Mr. Gilbert: Not at all, Your Honor.

The only... again, the limited restriction here is that the... a judge cannot... I'm sorry... a judicial candidate cannot prejudge a future case, cannot say,

"I think this statute over here is unconstitutional."

or,

"I think, in consumer fraud cases, that anybody who wins is entitled to punitive damages."

Unidentified Justice: So you don't trust the electorate in Minnesota to decide whether a judge has a judicial temperament.

You wish us to depart from the usual philosophy--

Mr. Gilbert: Again--

Unidentified Justice: --that we do not allow the State to presume that the public is better off not having complete information.

Mr. Gilbert: --Well--

Unidentified Justice: Maybe we should know about this judge's temperament.

And if he spouts off on all sorts of issues, we say, this is not the kind of judge we want.

Mr. Gilbert: --Your Honor, again, this is a balance that's being struck.

There's competing interests here.

There's the First Amendment interest that we're all familiar with.

There's the due process interest of individual litigants.

There's the compelling governmental interests that the State has in ensuring the integrity of the judiciary, both in terms of the actual integrity and the perception of it.

And that's why this limited restriction is appropriate.

Unidentified Justice: Maybe you shouldn't have judicial elections if the last is a significant State interest.

Mr. Gilbert: Well, Your Honor, that's--

Unidentified Justice: To the degree that you're making it a significant State interest here.

See, I just question whether it is a significant State interest, because you have a constitution that says,

"We're going to have judicial elections."

Now, that may be a very bad idea, but as long as that's in your constitution, I find it hard to believe that it is a significant State interest of Minnesota to prevent elections from being informed.

Mr. Gilbert: --Well, again, Your Honor, we're trying to weigh the different interests.

I am sure you wouldn't suggest that the State doesn't have a compelling interest in the integrity of the judiciary, and that is a competing interest that is being weighed here, and that results in the commitment clause that the ABA has adopted and the parallel provision that has been construed narrowly by the Eighth Circuit, which, again, only forbids or prohibits a judge saying,

"I'm going to decide this particular issue this way in the future."

Unidentified Justice: So you're saying the public doesn't know enough in order to determine whether a judge has the requisite qualifications for office.

Mr. Gilbert: Your Honor, I'm not saying that the public knows or doesn't know.

The concern is what happens if that candidate is elected, and then you or any other litigant comes before that candidate, who is now a judge, and tries to litigate the issue that the judge has already prejudged.

Unidentified Justice: Well--

Mr. Gilbert: How fair is that?

Unidentified Justice: --My goodness, we... I think we have... I will say present company excluded... I know we have had judges on this Court who have answered questions about particular legal issues to the Senate confirmation hearing.

Are you saying that those judges were disqualified from sitting in cases in which that issue would later come up?

Mr. Gilbert: No, Your Honor, I'm not.

And actually, I'm surprised to hear that.

Unidentified Justice: Is it... oh.

It's--

Mr. Gilbert: I am surprised to hear that, in light of the testimony that is in our brief and other briefs--

Unidentified Justice: --You should go before the Senate--

[Laughter]

Mr. Gilbert: --But, Your Honor--

Unidentified Justice: I actually found that when they approached a particular case about how you were going to decide in the future, both the senators... in my experience, since it only concerns me... would not press the issue of how you would decide a particular case.

I'm not talking about--

--And that's why... a particular case.

I was... my reference was to a particular issue.

A particular issue.

Mr. Gilbert: --Your Honor, cases are made up of issues.

And sometimes a case only has one issue.

Issues are important in and of themselves.

Unidentified Justice: Mr. Gilbert, do you think we should draw any distinction, or whether it would be reasonable for us to draw any distinction, between the application of the rule to the candidates themselves and the application of the rule to all of these ancillary individuals around them... their associates, their families?

Let's assume that we say that the rule passes muster with respect to the candidate.

What's the justification for muzzling the candidate's spouse?

I mean, I know, in fact, what--

Mr. Gilbert: Yeah.

Unidentified Justice: --it is, because we figure, you know, that's how you get the message out.

But do we have a more difficult First Amendment hurdle?

Mr. Gilbert: Your Honor, I don't think so, not at all.

I think it's really a misnomer to talk about muzzling, which is what the petitioners have indicated.

Unidentified Justice: Let's say "limiting".

Mr. Gilbert: Well, it's not even that.

What the rule does is ask the judicial candidate to encourage close family members not to effectively circumvent the rule by announcing views that they might be aware of that the judicial candidate would support.

Unidentified Justice: But if the family member says,

"Well, I'm going to tell anyway."

Mr. Gilbert: "I'm going to tell anyway"... there's no penalty.

Unidentified Justice: But the--

Mr. Gilbert: There's no--

Unidentified Justice: --But there could be.

Do I understand that there would be an inquiry in that event as to whether the candidate had, indeed, encouraged the family member to be quiet?

Mr. Gilbert: --Your Honor, the standard is "knowingly permit".

So, in other words, some... the judicial candidate would actually have to be the actor behind those actions.

Unidentified Justice: All right, but I want to know, in practical terms, what happens.

The spouse makes a statement... any one of the statements that have been mentioned here, except as suggesting prejudgment of a case.

The candidate stays mute.

I presume that a complaint would be filed against the candidate, and I presume the candidate would have to answer to the commission as to whether the candidate had, indeed, knowingly encouraged this.

Mr. Gilbert: Your Honor, I'd assume a complaint would not be filed under those circumstances.

Unidentified Justice: Why not?

I mean--

Mr. Gilbert: Well, I don't--

Unidentified Justice: --Are your opponents forgiving in your state?

Mr. Gilbert: --Pardon me?

[Laughter]

Unidentified Justice: I mean, are opponents just forgiving of their opponents in your state?

Mr. Gilbert: Well, Your Honor, it's a very difficult standard to satisfy, "knowingly permit".

Unidentified Justice: Well, maybe it's difficult to satisfy.

I'm just trying to get a sense of what the burden on the individuals involved is.

Mr. Gilbert: Well--

Unidentified Justice: And I assume that there could be a complaint, simply based on the emphatic statement of the spouse.

And my question is, does the candidate have to show, in that event, that he did not knowingly encourage, or does the State have to show... or the prosecutor or whoever it is... that he knowingly did encourage.

What's the drill?

Mr. Gilbert: --Yes, of course, the burden's on the State.

And not only is it on the State, but the State would have to show by clear and convincing evidence.

Unidentified Justice: Okay.

Mr. Gilbert: And the--

Unidentified Justice: But the candidate would have to answer.

Mr. Gilbert: --The... possibly.

The Lawyers Board--

Unidentified Justice: Why not?

Mr. Gilbert: --sometimes doesn't investigate complaints where they don't have sufficient evidence to think there's even a basis for the complaint.

Unidentified Justice: Well, would they have sufficient evidence in the event that a spouse made an emphatic statement saying, "His view is", or "Her view is"?

Mr. Gilbert: Yeah, it's conceivable, Your Honor, but, again--

Unidentified Justice: Counsel, is that... is that part of the canon part of the question in this case?

I know it's part of the canon.

I didn't understand that it was presented to us in the petition.

What's your view?

Mr. Gilbert: --Your Honor, it's kind of oblique.

The focus is on Mr. Wersal's comments.

And then there are other comments.

And I think one of the justices mentioned a vagueness challenge.

To the extent there's any vagueness challenge at all that was discussed at the Eighth Circuit and is part of the petition, it deals with these third parties and the phase "knowingly permit".

And the issue--

Unidentified Justice: Because we didn't have the interpretation that was later adopted--

Mr. Gilbert: --Right.

Unidentified Justice: --by the Eighth Circuit.

What Counsel says is that the new vagueness issues that he's raising are a consequence of the opinion which your Supreme Court has adopted, the Eighth Circuit's opinion.

Mr. Gilbert: Well, we... Your Honor, you're correct.

However, the Eighth Circuit opinion is the opinion that's being appealed here.

And what the petitioners have done is, they have refused to acknowledge that narrow construction.

And the fact of the matter is that the Minnesota Supreme Court has now authoritatively adopted that as a state court construction.

But the fact of the matter is, as well, that the Eighth Circuit already opined on what the standard is, and that issue was not raised by them, in terms of vagueness.

It simply was not raised.

Unidentified Justice: Was not raised where?

Mr. Gilbert: In the petition.

Unidentified Justice: In the petition.

The petition is whether it's, it unconstitutionally impinges on the freedom of speech.

And one of the principles of freedom of speech is that you cannot... you cannot chill speech by having a prohibition that is not clear.

I don't think that this is a separate issue from the First Amendment issue at all.

Mr. Gilbert: Well, they have not--

Unidentified Justice: We have lots of cases like that, about chilling speech because it's not clear what the coverage of the prohibition is.

Mr. Gilbert: --Your Honor, in their petition, though, they have not made those kinds of arguments specifically as to--

Unidentified Justice: They certainly did in the reply brief.

Mr. Gilbert: --They have in the reply brief, but not in the petition, which was the question that was asked previously.

And as to vagueness, I should say that this court has been really clear in the Broadrick v. Oklahoma case, for example, and the Colton v. Kentucky case, that sometimes rules and statutes... and, frankly, all the time, rules and statutes are not conducive to mathematical precision, that there are going to be, as the Court has said, germs of uncertainty in how these laws are applied.

And these laws are going to be applied based upon facts and circumstances.

And in this particular case, I think it's really significant that we don't have any facts and circumstances as to what Mr. Wersal wants to say.

Unidentified Justice: Well, I think you could set up a system where you get advisory opinions, but I don't know that we've ever allowed that to be done in the First Amendment area.

Mr. Gilbert: Oh--

Unidentified Justice: "Please may I say this"?

You know, you submit what you want to say, and somebody tells you,

"Yeah, okay."

"You can say that."

That's certainly contrary to our approach to the First Amendment.

Mr. Gilbert: --Well, Your Honor, I don't... Your Honor, first of all, I'm not a proponent of what... of that.

But in Letter Carriers, that was a critical consideration in upholding the Hatch Act against constitutional attack, because there was the ability of people who had questions about the application of the statute to actually go to an advisory board and get an opinion.

Similarly here, both of the boards that are parties to this case do provide advisory opinions, and they provide them on short notice, as well.

So there is that mechanism.

I'm not suggesting it's a substitute, but it is a consideration in terms of if there is a close question on an issue and someone wants some assurance as to how that particular situation would be interpreted, they can go to the boards and ask that question.

Unidentified Justice: Well, how soon can you get something from the board?

If somebody wants to give a speech in a political campaign, I assume you can't get a 12-hour ruling from the board.

Mr. Gilbert: Well, they actually do advisory opinions over the phone, Your Honor, on very short order, and they could do it in a matter of hours or days, depending upon what the needs are.

Unidentified Justice: Mr. Gilbert, you brought out that this is not just a question of the candidate informing the voter, that behind all of this is a litigant who's going to be in a future case.

How does it work in Minnesota?

Suppose, to take an example that Mr. Bopp provided in his brief, the judge... or the candidate is campaigning "Tough on Drunk Driving".

And then I'm a drunk driver, and I come before this judge, now elected, and I say, I want him to recuse, he said he's tough on drunk driving.

Mr. Gilbert: Are you asking in the--

Unidentified Justice: Would there be, under Minnesota law, a grounds to say,

"I don't want that judge, because he's announced in the election that he's tough on drunk driving?"

Mr. Gilbert: --No, I don't think so, Your Honor, not under those circumstances.

3 One distinction I would like to make here... oh, I'm sorry, Your Honor.

Unidentified Justice: Thank you, Mr. Gilbert.

Mr. Bopp, you have three minutes remaining.

REBUTTAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS

Mr. Bopp: Your Honor, I don't think this is a matter of mathematical precision.

The State brief, itself, states two different formulations of the rule.

They say, quote,

"It is clear that the clause applies to statements about how they would decide, quote, issues, end of quote, on pages 1 and 47."

"And then they say it is, quote."

clear,

"end of quote, that the announced clause applies to statements about cases."

"And that is on pages 12 and 37."

"The rule is not even clear in terms of the State's own formulation of its scope."

"Secondly, as the Joint Appendix indicates on pages 111 through 123, announcing your views also includes simply answering questions on radio interviews or after speeches."

"It is hardly a remedy for a candidate to call up the board or the office for an oral opinion which is not binding on them about whether or not they can answer a question on the radio."

And, finally, it is undisputed that the people of Minnesota want an impartial judiciary.

Governor Arnie Carlson, at Joint Appendix page 247, said... who's a State's witness... that people do not want judges who are pre-committed.

Thus, candidates who would make excessive statements, who would appear to be partial, risk defeat at the polls in Minnesota.

Thus, the people can be trusted to make the decisions that they, themselves, have conferred upon themselves, as long as they have the information they need to make that choice.

The First Amendment guarantees that they should receive that information, which the Announce Clause both prohibits and chills.

It is, therefore, unconstitutional.

Unidentified Justice: Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bopp.

The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 01-521, Republican Party of Minnesota versus White will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case comes to us on writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

There is a long tradition in this country of the states selecting their judges by popular election.

Vermont did so even before the founding of the Union.

By the time of the Civil War, the great majority of the states did so and they continue to do so today.

Minnesota is one of those states.

Ever since its admission to the Union in 1858, the Minnesota constitution has provided for the selection of all state judges by popular election.

Beginning in 1924, the American Bar Association began to promulgate model codes of judicial conduct that included restrictions on what candidates for judicial office could say during their election campaigns.

The states slowly adapted these restrictions not by legislation but by decree of State Supreme Courts.

One of these restrictions is known as the announce clause and it was adapted by the Minnesota Supreme Court in 1974.

The announce clause prohibits candidates for judicial election incumbent judges and challengers alike from “announcing their views on disputed legal or political issue”.

What this means is that the candidates cannot state their views even in response to questions on any specific non-fanciful legal question within the providence of the courts for which they are running.

Indeed, the Judicial Board in Minnesota has printed a list of pre-approved questions which judicial candidates are allowed to answer.

These include how the candidate feels about Commerce in the courtroom, how he would go about reducing the case load, and how the court’s cause of judicial administration could be reduced, how he proposes to insure that minorities and women are treated more fairly by the court system.

Petitioners who include Gregory Wersal, an erstwhile candidate for Associate Justice of the Minnesota Supreme Court sued respondents, several state officials who enforced the announce clause, seeking a declaration of the clause violates the First Amendment and an injunction against its enforcement.

The District Court upheld the constitutionality of the clause and granted summary judgment in favor of respondents.

The Eight Circuit affirmed.

We now reverse.

The announce clause is a content-based regulation that burdens a category of speech at the core of our First Amendment freedom’s; speech about the qualifications of candidates for public office.

Accordingly, in order to pass constitutional master, the clause must satisfy our strict scrutiny test.

Under this test, respondents have the burden to prove that the clause is: one, narrowly tailored in order to, number two, serve a compelling state interest.

Respondents assert that the announce clause serves two compelling state interests, namely: preserving the impartiality of the state judiciary and preserving the appearance of that impartiality.

Under any definition of impartiality, we conclude the announce clause clearly does not survive strict scrutiny.

The traditional meaning of impartiality is a lack of bias for or against either party to a proceeding.

That is the sentencing which the term is used when the cases sighted by respondents for the proposition that an impartial judge is essential to due process.

It is obvious that the announce clause is not narrowly tailored to serve either this sort of impartiality or its appearance.

The clause does not restricts speech for or against particular parties but rather speech for or against particular issues.

To be sure when a case arises that turns on a legal issue on which a judge as a candidate has taken a particular stand, the party taking the opposite stand is likely to lose but not because of any bias against that party.

Any party taking that position is just as likely to lose.

Another possible meaning of impartiality, though certainly not a common one, is the lack of preconception in favor or against a particular legal view.

The announce clause may well further impartiality in this sense, but it is obvious that achieving this sort of impartiality is not a compelling state interest.

It is virtually impossible to find a judge who has not formed at least some tentative answers to substantive legal questions.

Indeed, if we are possible to find judges with minds that were empty slates, it would hardly be desirable to appoint them.

This brings us to the third possible, and again uncommon, meaning of impartiality namely open-mindedness.

Open-mindedness demands not that the judge have no pre-conceptions on legal issues but that he would be willing to consider opposing views and remain open to persuasion when the issues arise in a pending case.

Respondents argue that the announce clause serves the interest in open-mindedness or at least its appearance because it relieves a judge from the pressure to rule a certain way in order to maintain consistency with statements he has previously made.

We need not decide however, whether achieving impartiality in this sense is a compelling state interest because we do not believe the Minnesota Supreme Court adapted the announce clause in order to serve that purpose.

Statements made during election campaigns are an infinitesimal portion of the public commitments to legal positions that judges or would be judges undertake.

Before they arrive on the bench and even more frequently while they are on the bench, candidates and judges commit themselves on legal issues that they must later rule upon.

Under the announce clause, a candidate for judicial office may not say, I think it is unconstitutional for the legislature to prohibit same sex marriages, but, he may say the very same thing up until the day before he declares himself to be a candidate, and he may say it repeatedly after he is elected.

As a means of pursuing the objective of open-mindedness, the announce clause is willfully under inclusive as to render belief in that purpose a challenge to the credulous.

The dissenters say that statements made during the campaign are different, that they are somehow specially binding on the judge.

Well, that might be true with regard to campaign promises.

I promise I will rule such and such way if elected.

I say that may be true; I think you have to be a little naïve to think that campaign promises are among more binding of human legal commitments, but it might be true with regard to campaign promises.

But the Minnesota Supreme Court has adapted a separate prohibition on campaign pledges and promises, which is not challenged here.

So even if one believes that campaign promises are specially binding, that would not justify the announce rule.

The dissenters also say that our opinion today assumes that judicial elections and elections for the political branches must be governed by the same rules.

We say no such things.

There can be different rules.

But as our cases have long held, any such rules that prevent the expression of views must be narrowly tailored to serve a compelling state interest, and that requirement has not been met here.

There is an obvious tension between the provision of the Minnesota constitution that requires the election of all state judges and the Minnesota Supreme Court’s announce clause which places most subjects of interest to the voters, who elect judges, off limits.

The disparity is perhaps unsurprising since the American Bar Association which originated the announce clause has long been an opponent of judicial election.

Then opposition may be well-taken, but the First Amendment does not permit it to achieve its goals by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.

We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election, and we do not begin doing so today.

I will conclude this summary as I concluded the analytical portion of the opinion with a quotation from Justice Marshall -- the second Justice Marshall not the first -- in a related case, Thurgood Marshall wrote, "The greater power to dispense with elections all together does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance.

If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process the First Amendment rights that attach to their roles."

Justice O’Connor and Justice Kennedy have filed concurring opinions; Justice Stevens has filed a dissenting opinion in which Justices Souter, Ginsburg, and Breyer have joined.

Argument of Justice Ginsburg

Mr. Ginsburg: I also have filed a dissenting opinion in which Justices Stevens, Souter, and Breyer have joined.

Whether state or federal elected or appointed, judges have a role fundamentally different from that of legislators or executive officials.

Judges do not act on behalf of particular persons, communities, or parties, they serve no faction or constituency, they must drive to do what is legally right in each individual case, all the more so, to borrow the Chief Justice’s words, when the result is not the one the home crowd wants.

Minnesota, like most states that gives citizens a voice in selecting judges has installed controls enabling the public to comprehend that judges speak in the name of the law and not as political actors.

All judicial elections in Minnesota are non-partisan.

Candidates may not seek or accept endorsements from political parties, attend political gatherings, or identify themselves as members of a political organization.

They may make no pledges concerning their conduct in office and under the announce clause, at issue here, they may not publicize how they would decide issues likely to come before them as judges.

They may, however, say a great many things of large interest to voters; they may convey information about themselves and describe their conception of the role of a judge.

Among approved topics they may address are the criteria for departing from the sentencing guidelines, the remedies for racial and gender bias, the balance between free-speech rights, and the need to control hate crimes.

They may criticize or defend past decisions of any court.

What they may not do simply or with sophistication is remove themselves from the constraints characteristics of the judicial office and declare how they would decide an issue without regard to the particular context in which it is presented sounds briefs oral argument, and as to an appellant bench, the benefit of their colleague’s analysis.

In striking down the announce clause the Court, as I see it, grievously errs in two respects: First, in homing in on the announce clause, the court scarcely attendance to the essential differences separating judicial office from political seats.

If Minnesota opts to elect its judges the court suggests, it may not reign in what candidates say.

Today’s opinion places unqualified reliance on prior decisions of this Court on elections for legislative and executive posts including the case with the words from Justice Marshall that Justice Scalia just quoted, the Court today affords no clue concerning what manner of judicial campaign regulations might survive the high First Amendment threshold the Court applies.

I do not agree that an election is an election; I would sharply differentiate elections for political office, in which the First Amendment holds course way, from elections designed to select those whose office it is to administer justice without respect to persons.

Minnesota did not choose a judicial election system with all the trappings of legislative and executive races, while providing for public participation, it tailored its judicial elections to fit the character of third branch office holding.

The balance the State sought to achieve allowing the people to elect judges but safeguarding the process so that the integrity of the judiciary would not be compromised should encounter First Amendment shawl as a written dissent develops.

Second, the Court fails to give due way to the function the announce clause was designed to serve, together with the companion provision prohibiting candidates from making pledges or promises of conduct in office, a provision, all parties to this case agree is constitutional, the announce clause aims to safeguard judicial impartiality in both fact and appearance.

Election-driven commitment to certain positions however common place and races for the political branches, are incompatible with the judicial role.

They compromise the Fourteenth Amendment guarantee of due process of law for they place pressure on the judge to resist the pleas of litigants who make arguments the judge has promised to reject.

Judicial campaign commitments also undermine the very source of the judiciary’s authority, public confidence in the integrity of those who don the robe.

Commitments to rule this way or that convey the impression of unseemly quid pro quo the judicial candidate’s promises on issues in return for the electorate's votes at the polls.

Such an exchange inevitably diminishes the public's faith in the capacity of judges to administer the law without regard to personal or political self-interest.

Working in tandem with the announce clause, the announce clause and pledges or promises prohibition together, goes to avert peace between evils.

The announce clause targets statements that do not technically qualify as pledges or promises but nevertheless publicly made known how the candidate would decide legal issues.

The clause thereby prevents what would otherwise be an easy end run around the letter and spirit of its companion provision.

Without the announce clause in other words, the no-promises or pledges clause would be feeble an arid form, a matter of no real importance.

Judges are not political actors and the First Amendment does not require that they be treated as politicians simply because they are elected.

For more than three quarters of the century, States like Minnesota have endeavored to experiment tested by experience to balance the strong constitutional interest in judicial integrity and free expression within the unique setting of an elected bench.

The announce clause, borne of this long effort, comes to this court bearing a weighty title of respect.

In accord with the judgment of the Court of Appeals for the Eight Circuit, I would uphold the provision as an essential component in Minnesota’s accommodation of the complex and competing concerns in this sensitive area.