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Monday, July 23, 2007

Bellwether v. Bizzyblog: Division Over Free Speech For Judges And The Brinkman Swipe

CINCINNATI (TDB) -- Bizzyblog's Tom Blumer delivered his brief today. Now the Bellwether offers a counterpoint in respectful disagreement and will quote the deeply conservative Supreme Court Justice Antonin Scalia: "For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law."

[UPDATE: 9:50 pm EDT 7/23/07 -- Weapons of Mass Discussion has been following the Ruehlman-Brinkman blowup. The Bellwether was remiss in not linking earlier, and hopefully makes amends. The blog has the coolest name in the Ohiosphere, and keeps a sharp eye on the treacherous shoals of politics and public affairs. WMD is correct that Brinkman-Ruehlman is not a one news cycle potboiler. It seems to have legs.]

The debate is joined over free speech for judicial officers in Ohio, and grows out of Hamilton County Common Pleas Judge Robert Ruehlman's censure from the bench last week of conservative Republican Ohio State Rep. Tom Brinkman.

The Bellwether finds itself in the camp of Justice Scalia, who clearly favors free speech for judges on matters of legal import. Ruehlman, a GOPer as is Brinkman, did not mince his words. He called Brinkman a "criminal" for allegedly changing signatures on referendum petitions that had been circulated to repeal a Cincinnati law promising equal rights to gays and lesbians. Brinkman was not charged with a crime, although the judge said his conduct was reprehensible. The links above cover all that territory.

Bizzyblog has taken the position that it is unethical for judges to have strong opinions, and cites enough canon-law to fill the cavernous cargo bay of an Air Force C-17. He marshalls his contention that judges should not disparage the people who appear in their courtrooms, or have matters pending, and that judges should be impartial, or somehow thoroughly above all frays -- though those are not his words. But they certainly appear to convey Bizzyblog's intent.

Over here at the Bellwether, the canons are not interpreted quite so tautly, and they are seen as a bit archaic, more akin to the slender freight bays of the C-47's that hauled materiel in World War II. The guiding principle -- at least in this instance about judicial freedom of expression -- comes from Justice Scalia, a man of opinion on and off the bench, a man with a reputation as garrulous and of being in accord with the political right as it exists in the United States.

Scalia, in 2002, wrote the opinion that squelched state attempts to limit what judges could say while they campaigned for office. Ethics rules had them censored, and Scalia led the Supreme Court majority that loosened those rules in a case originating from Minnesota. He said candidates for judge can have views on the law, and can speak publicly about what those views are. It is not a far jump from that to Ruehlman, who said the law governing elections in Ohio had been abused by Brinkman. Here's Scalia:

"Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. 'Proof that a Justices mind at the time he joined the Court was a complete tabula rosa in the area of constitutional adjudication would be evidence of a lack of qualification, not lack of bias.' (citing Justice Rehnquist) The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. And since avoiding judicial preconceptions on legal issues is neither possible or desirable, pretending otherwise by attempting to preserve the 'appearance' of that type of impartiality can hardly be a compelling state interest either."

There is more on this: Judges who are biased can be removed from cases, either by the parties in court complaining, the jurists' own recognition that they cannot be fair, or action of the Ohio Supreme Court, which has the power to step in and oust a judge whose mouth was out of order. So far, none of the parties with the election law case before Ruehlman have asked him to recuse himself.

A final note: Bizzyblog and I part ways on whether Judge Ruehlman was within his rights. But there won't be any name calling or eye-gouging or spitting, which all to often goes hand-in-hand with blog posts that take different sides on matters of public discourse. Perhaps I am more libertarian on matters of free speech for elected officials; perhaps he is more concerned about the issue of fairness to someone who is severely criticized by a high-ranking public official.


  1. Bill, my man, you still haven't addressed the FACT that a grand jury failed to indict Brinkman on the very charges which the Judge made his statements. If the judge wants to spout off, I strongly believe he should have chosen Deters as his target... The judge may very well have engaged in libel.

  2. Matt --

    Well, I don't know about libel -- the test there is reckless disregard for the truth.

    However, opinion is protected completely. So if Judge Ruehlman was expressing an opinion about a public official, he's probably in the clear.

    Yes, the grand jury failed to return a true bill. Rep. Brinkman was not charged with a crime. And that is precisely what Judge Ruehlman was complaining about. I think he was entirely within his rights to air his opinion. I may have been surprised by what he said, and where he said it, but I cannot say that he doesn't have a right to say what he said. So I'm sticking up for Ruehlman on this.

    Maybe I have free speech blinders, Matt. By the way, I'm not joyous over the episode.

  3. I think what everyone misses is that the case isn't over. The two women haven't been sentenced, and Ruehlman's outburst has to be seen as helping them, i.e., affecting part of the outcome of the case. If Ruehlman was even within his rights to say what he said (I don't think he was, based on the canons), he should not have done it until the sentencing was established in court.

    I haven't kept my eyes glued to the courts over the years, but this is the first time I've heard a directed rant like this delivered by a judge in a real live case. Ruehlman's hits are of a piece with Judge Judy and their ilk.

    Bill, your examples on Scalia are off the bench. In fact, if the canons still hold (sometimes I wonder), judges are not allowed to talk about specific cases during political campaigns, and are quite constrained in what they can and can't say about specific decided cases in other venues. But Ruehlman has carte blanche to rip an unindicted defendant in a live case? That just doesn't add up. I don't think this is about partiality as much as it is temperament.

  4. Dear Bizzyblog (Tom):

    Continuing our dialogue.

    If Judge Ruehlman were intemperate in calling Rep. Brinkman a criminal, the system has safeguards in place to deal with that.

    In fact, the anti-gun lobby attempted to have him removed from the case involving a challenge of the 1920s-era law that forbid concealed carry law in Ohio. Ruehlman struck down the law, thus granting citizens their constitutional right to bear arms. The challenge contending he was biased against the anti-gun lobby was rejected in the appeals court.

    In re: Brinkman: Ruehlman obviously spoke as he accepted the pleas of two people who obtained signatures on the Cincinnati gay rights ordinance repeal petition. The events that lead up to those pleas had been described to him in detail. And he has to decide on a punishment at a later date. He has ordered a pre-sentence investigation.

    Ruehlman's analysis is that the two gatherers were minions, and that the entity they worked within (the petition drive organization) was controlled by someone else, someone whom he believes has not been brought to account.

    That kind of analysis happens every day at the courthouse in criminal cases. For example: Small time drug peddlers are brought to justice, but the judges often remark that the big guys running the cartels somehow avoid arrest, continue to rake in large amounts of cash, and appear immune because they are in Colombia or some such place.

    Judges are not lumps on the bench. They are allowed to speak. and in this case Judge Ruehlman weighed in by saying State Rep. Tom Brinkman's misconduct looked to him like a violation of the law, but that State Rep. Tom Brinkman avoided a day in court. Ruehlman has brought that to bear on his analysis of the case, which is his duty as he prepares to render a final judgment.

  5. We're going to have to agree to disagree on this, Bill, but I believe a judge complaining that the big fish, whose cases aren't before the court at the moment, aren't getting caught is a long way from complaining that someone specific who was considered for indictment wasn't.

  6. Dear Bizzyblog (Tom) --

    OK, my friend. We'll disagree on this one.

    Now we have to look for something we both can agree on. The best of this, in my view, is that we managed to stake out different positions, came to them honestly, and did not resort to throwing pies, or worse.

    Maybe we can offer symposiums on Internet debate? You are good with a riposte, and can pitch one hell of an intellectual fastball. I would invite Jill to moderate. Perhaps we can have an Ohiosphere version of the McLaughlin Group, and set aside the fourth chair each week for a guest. Could this be done on a blog?

  7. "Could this be done on a blog?"

    It most defintely fact that sort of thing is exactly what the blogosphere does best...

    I think a podcast of that sort of thing would be real interesting too, now that you mention it...

  8. Matt --

    You know much more about the techno etc. than I, and I'm glad you jumped in there to point out the possibilities.

    Podcast didn't even slip into my consciousness until you brought it up. And you would be good in one of the chairs, or moderating, because you already are doing something like that. I suppose some of us ought to put our heads together. They have meet the bloggers in Cleveland area. Downstate, we could have beat the bloggers, where we chew up what the 'sphere is saying, or what is being said in the sphere, or not being said.

  9. Good thoughts, folks. I sent Bill a separate e-mail, which I will forward to Matt.

  10. Another internet "venture" that I am engaged in also is my internet radio station, so I have all of the equipment neccessary to put a podcast (or a live internet radio show!) together... I think the concept has real merit.