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What should we know about those who want to be judges?

Senior Editor Regular News

What should we know about those who want to be judges?

Coxe and Stemberger debate the issue before the Tallahassee Federalist Society

Senior Editor

Asking judicial candidates questions about their views on political and social issues is a better way to educate voters about what kind of judge they would be, according to John Stemberger, president of the Florida Family Policy Council.

But Bar President Hank Coxe said questionnaires, such as those recently sent to Florida judicial candidates by the FFPC and the Christian Coalition, undermine the judiciary’s independence and accountability, which in turn undermines democracy.

The two met October 18 at the Tallahassee Federalist Society to debate the use of issue questionnaires in judicial elections. Coxe said the Bar has no position on the questionnaires and the views he presented were his own.

The joint appearance produced a lively debate, including sharp audience questions.

Stemberger, whose group has sued the Judicial Qualifications Commission over its questionnaire (see story, page 1), led off by saying the questionnaires provide accountability and a check on judicial activism.

He said judges must have the independence to make their rulings without fear of financial or political retribution, but must not cross the line from the scholarly interpretation of the law and constitutional issues into making the law.

But voters have no valid way to measure that when they consider judicial candidates, Stemberger added.

“Judicial elections are devoid of any substantive discussion between the candidates on judicial philosophy,” Stemberger said. “In the instance of county and circuit court judges, we predominantly elect our judges based on the color of their yard signs or whether their names sound familiar.”

While judicial canons in other states have been struck down for prohibiting candidates from giving their views, Florida has a different system. Canon 3 of the Code of Judicial Conduct says if judicial candidates give their views on an issue, they may be asked to recuse themselves if that issue comes before them on the bench, he said.

The result was about half of this year’s judicial candidates returned the FFPC questionnaire, but at least 90 percent declined to answer the substantive issue questions, Stemberger said, usually citing that canon.

“It is fiction to say judges cannot announce their views on disputed political issues without losing their ability to be fair and impartial,” he said. “Judges have opinions. The only question is this: Does it serve the interest of a robust democracy to know those views before the election or know those views after the election in the context of a courtroom?. . .

“Judges can and should announce their views and this is distinctly different than pledging to rule a certain way in a case or category of cases.”

Coxe began by quoting the rights to freedom of conscience, freedom of religion, freedom of expression, a good education, and other privileges that were contained in the 1918 Soviet Constitution, and completely ignored under the dictatorship of Josef Stalin.

The difference, he continued, is in the U.S. people believe the Constitution means something, and they believe that because the courts are available to enforce their rights.

“My problem with the questionnaires is they do not fully inform the electorate. They do the opposite,” Coxe said. “It creates a scorecard for someone to take into a voting booth and say, ‘Yes, this person believes [as I do]’. . . Nothing in the questionnaire has to do with the judges following their duty to follow the law, hear the facts, and decide accordingly.”

Nor do the questionnaires tell voters if a candidate has been divorced six times because of infidelity or disciplined professionally three times, Coxe said, but rather they only say, “This person is one of us.”

He quoted former U.S. Sen. Alan Simpson, a conservative Wyoming Republican, during the confirmation hearings for Justice Clarence Thomas, saying that to protect judicial independence it was important “that we not even remotely question the candidate on issues that are likely to come before the court.”

Chief Justice John Roberts made similar comments during his confirmation hearings, Coxe noted, and retired Justice Sandra Day O’Connor has recently expressed the same sentiments.

“Our judiciary belongs to all people,” Coxe said. “Once that candidate starts answering those questions, he or she starts undermining their qualifications to hold that office.”

In response to a question, Stemberger argued judges announce their views when they write opinions and dissents and politicians who have become judges have previously announced their views on dozens of issues, yet no one has suggested that influences their ability to follow the law as a judge.

He said Canon 3 is faulty because it does not draw a bright line on what is allowed, instead relying on a fuzzy standard that recusal may be required if a candidate gives the “appearance” of pledging to rule a certain way.

Coxe said he thinks there are many questions candidates can answer, including discussing the legal merits of prior decisions. But he’s concerned asking some issue questions will only lead to more inappropriate queries.

“How many of you have read the Christian Coalition’s questionnaire?” asked Coxe, who is an elder at Riverside Presbyterian Church in Jacksonville. ‘“Have you had a life-changing experience with Jesus? Do you believe the word of God is inerrant? How often do you attend church?’

“What does that have to do with the qualification to be a judge?” he asked.

He also questioned the value of questionnaires, noting a question on the FFPC form asked candidates to name their favorite U.S. Supreme Court justice, and two candidates named people not even on the court.

“I’m a little concerned about their qualifications,” he said.

That caused Stemberger to quip, “Hence the effectiveness of the questionnaire.”

Much of the difference between the two focused on accountability for judges.

“There is no one speaking for judicial accountability,” Stemberger said. “It’s no secret that those in power want to retain power and have the least accountability.”

He added such questionnaires can help check overextension of judicial power.

But Coxe argued the founding fathers saw judges as accountable to more than public opinion.

“The framers of this Constitution that we all live by came to the collective brilliance to say we’re not going to elect them [federal judges]; we’re going to appoint them for life so they can follow their oath to follow the law,” he said.

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