This editorial first appeared in the Anchorage Daily News:
American judges have a long tradition of not saying much - unless they are speaking from the bench. The tradition is founded on the belief that it's best for judges to retain at least the appearance of impartiality. The appearance may only be theater to those intimate with the judge's politics and proclivities, but in the courtroom, theater is important.
In Alaska, the tradition has been part of the judges' code of conduct. That is, until last week, when Alaska Right to Life won a federal lawsuit against the Alaska practice of barring judges from airing their opinion on controversial issues. Judge Ralph Beistline of Fairbanks found the restriction impermissibly burdens free speech while violating the First Amendment.
The matter reached Judge Beistline after Alaska Right to Life discovered judges seeking retention could not answer questionnaires. Some judges who responded to Right to Life said the Alaska Code of Judicial Conduct prevented them from commenting. The organization sued.
A newspaper doesn't complain about expanded free speech. Free speech is the newspaper's currency. Judges, moreover, can do a better job of explaining themselves to the public. Their statements in the official election pamphlet are typically sincere platitudes, and often enough, the courts' behavior seems alien to those rarely exposed to the law in action.
But Alaska judges should exercise their newfound right with discretion. It's one thing to explain your legal philosophy. It's another thing to give a loud, partisan speech. There's no shortage of partisan ranters in this country - just turn on the radio.
It also should be noted that questionnaires - and newspapers use them as much as interest groups - are a poor platform from which to explain any nuanced belief. Most interest-group questionnaires aren't designed to promote thought or intelligent debate. They're for differentiating good guys from bad guys for interest-group supporters. Supporters can then vote accordingly.
Alaska Right to Life has provided judges with an opportunity to speak. The ruling does not create an obligation. Judges who answer interest-group questions about their views on major issues should know their reward.