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Editorial: Judge Eakin regrets / It's a little late to demand a dignified campaign

Sunday, November 11, 2001

Now that he has won election to the Pennsylvania Supreme Court, Judge J. Michael Eakin wants to get third-party attacks out of judicial races.

Now that he has won election, Judge J. Michael Eakin wants "fair and dignified campaigns."

Now that he has won election, Judge J. Michael Eakin says he was disappointed last week "hearing other people calling me vile . . . It really hurt."

If he's hurt, how does he think Kate Ford Elliott feels?

If anyone called Superior Court Judge Eakin vile, one reason may have been the nasty advertising by an independent group that sided with him in his campaign for a seat on Pennsylvania's highest court. TV ads run across the state by the Law Enforcement Alliance of America praised Judge Eakin while distorting the record of Judge Elliott, his Democratic opponent and Superior Court colleague (and the candidate endorsed by the Post-Gazette).

Free speech is not necessarily fair speech, and the law should not muzzle independent organizations in expressing their views about political candidates. All the same, these ads were absurdly unfair and sought, without basis, to portray Judge Elliott as soft on crime.

From the viewer's perspective, moreover, the attack dovetailed nicely with Judge Eakin's own commercials highlighting his previous experience as a district attorney.

While the attack ads drew widespread condemnation, candidate Eakin was less than vociferous. The Republican issued a statement noting that he had nothing to do with the ads, he pledged not to criticize his opponent "based on individual cases" and he called on independent groups, including the Law Enforcement Alliance, to refrain from unfair attacks. He did not, however, express the sort of outrage about the attack that might have blunted its effect.

We now learn that, in a similar vein, Judge Eakin's campaign manager asked state Republican officials to stop negative attacks on Judge Elliott after the party issued a release in September implying that she was insensitive to victims of sex crimes. The response of a party official: "We didn't care" about Judge Eakin's objections. They have might have cared if Judge Eakin had made a public stink about the release.

Now that the votes are in and Judge Eakin is headed to the Supreme Court, he tells the Post-Gazette that he wants to meet with the bar association and put a stop to nasty campaigning in judicial races. It's a welcome gesture, but not a very timely one.

The best way to end cheap-shot attacks on judicial candidates is to end the election of judges. Pennsylvania voters have been manipulated by such ads before -- in other campaigns for judge and even by Mr. Eakin's 1995 campaign for Superior Court, when his campaign and that of his opponent both slung mud.

Because candidates for Pennsylvania courts are barred, for good reason, by judicial canons from commenting on policy issues (such as abortion, gun control and the death penalty), they must claw for electoral advantage in other ways. Combine that with generous campaign contributions from special interests, and it's easy to see why electing judges, for all of its populist appeal, serves neither justice nor democracy.

We say this to Justice-elect Eakin and others who say they are turned off by nasty campaigning: The remedy is the appointment of judges by the governor (ideally from a list suggested by a merit-selection commission), with confirmation by the state Senate.

Under an appointive system, interest groups could still oppose the confirmation of a particular judge, but their audience would be the state Senate, not an electorate whose only impression of a judge comes from a bombardment of attack ads.

No system is perfect, but appointing judges is infinitely preferable to a status quo that allows supporters of one judge to promote him by trashing another.

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