The "announce clause" and the First Amendment: in large part because of the removal of restrictions on a judicial candidate's ability to announce how he or she might rule on an issue that might come before the court, we have witnessed the emergence of special interest questionnaires to judicial candidates.

• Author: Coxe, III, Henry M.
• Position: President's page

This is all terribly confusing. When lawyers run for election as judges in Florida, I had assumed voters prefer to select them based on their experience and contributions to the profession and community. I figured voters consider what other lawyers think of their legal skills and weigh their abilities to exercise good judgment, follow the law, and remain independent of special considerations.

But I'm looking at these judicial candidate questionnaires, trying to decide, for example, how I would answer (hypothetically) questions nine and 10 from the Christian Coalition, which asks how I would have voted (secretly) on two issues in November 2004. (1)

Just as difficult are questions seven, eight, nine, and 10 from the Florida Family Policy Council asking opinions on parental consent for abortion, assisted suicide, same-sex marriage, and homosexual adoption. (2)

It is called the "announce clause." Adopted by Minnesota in 1974 from the American Bar Association's Model Code of Judicial Conduct, the rule forbade a candidate for judicial office, including an incumbent judge, from "announcing his or her views on disputed legal or political issues." Twenty-eight years later, five U.S. Supreme Court justices declared this nationally accepted principle to be trumped by the First Amendment to the U.S. Constitution. When this column is published, Florida will have decided most of its judicial elections, which is unfortunate. If everyone in this profession were aware of the fallout of Minnesota v. White, 536 U.S. 762 (2002), we would all have qualified to seek judicial office and had the time of our lives answering these questions from special interest groups.

The National Conference of Chief Justices in August 2006 condemned what has occurred in judicial elections since the White decision. In large part because of the removal of restrictions on a judicial candidate's ability to announce how he or she might rule on an issue that might come before the court, we have witnessed the emergence of special interest questionnaires to judicial candidates. Sadly, this has highlighted our worst fears that a candidate may no longer simply commit to follow the law but pander to special interest groups in an effort to improve the opportunity to be elected.

In her concurring opinion in White, Justice O'Connor stated, "If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing...