I wrote a letter to the editor of Minnesota Lawyer, a copy of which is posted here (scroll down). Judge Jack Nordby provides an even better rebuttal in the same issue of the legal newspaper. Judge Nordby begins:
Your editorial attacking Greg Wersal (“Sometimes a retreat is just a retreat” in the June 5 issue) was unfair and unbecomingly patronizing, unlike your more balanced and thoughtful piece on May 15 (“Ethics investigation a good thing for Confidence in the Judiciary”).
You minimize Mr. Wersal’s resounding victories in a series of battles about the most fundamental of rights — free speech — as making “some valid points over the years.” In fact he undertook, with a good deal of courage and at great personal risk (which you like others suggest was mere eccentricity: a “gadfly” who “lights himself on fire” and “needs a hobby”?) to confront a Minnesota Supreme Court, that loomed with enormous power over him, for its wholesale stifling of constitutional rights. And he won — not only in the U.S. Supreme Court, but in the 8th Circuit as well.
Nordby also raises the point that I made about Wersal facing his own ethics complaints for allegedly violating regulations that were later held unconstitutional. Then Judge Nordby continues:
You suggest that the $3,000 for the retreat he complains about was trivial, (a very odd rationalization), and that the investigation will raise the “taxpayers’ tab.” You overlook the enormous cost — that will also at some point be presented directly or indirectly to the taxpayers —of the court’s ill-advised resistance to Mr. Wersal’s well-founded constitutional arguments. (Someone will have to pay his successful lawyers’ well-earned fees for a costly fight that could and should have been avoided.)
Whatever the merits of the present allegations about this “retreat” — upon which, like you, I make no judgment — it is time for the bench and bar to stop being pettily poor losers. Mr. Wersal won, unequivocally. So did the Constitution. This should make judges (and journalists) joyful and respectful, not morose and spiteful.
You misuse Moby Dick. The courts are not Mr. Wersal’s white whale. He is theirs.
This should serve as sufficient rebuttal to yet another piece in the June 12 issue of Minnesota Lawyer, this one by former Minnesota Supreme Court Justice James Gilbert. But there are a couple of nuggets by the former jurist that deserve mention:
There certainly is partisan irony in the Republican Party’s recent activities. On the one hand, Republicans have spent the last five years promoting First Amendment rights of judicial candidates. However, at last week’s convention, the Republican Party would not even let a woman candidate appear at the convention to challenge Gov. Tim Pawlenty’s endorsement. This candidate, Sue Jeffers, is a successful business owner who has voted for Republican candidates and supported the Republican Party for 30 years. However, she happened to disagree with the governor on using taxes to fund sports stadiums. The party was not only timid but disrespectful of Ms. Jeffers’ First Amendment rights and they refused to even let her into the convention!
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It is time for Gov. Tim Pawlenty to speak about this important issue of judicial independence. The governor has been AWOL in this struggle. He is a trial lawyer who earned his living in the courtroom before he became governor, and the first lady is a trial court judge in the 1st Judicial District. The governor knows full well the importance of a nonpartisan, impartial judiciary even on the cases that he is now bringing before the court on behalf of the state. However, he has not exerted any leadership in this area. He has merely uttered a faint voice of protest and then lets events unfold. Similarly, in 2000 he had offered to publicly endorse my candidacy and then at the last minute changed his mind. He stated that his endorsement might cause discomfort among his conservative political base.
Here is the deal. Sue Jeffers was denied the opportunity to speak, not because she is a "woman candidate" or because she disagrees with the governor, but because she was an endorsed (at the time of the convention) Libertarian Party candidate. It would be chaos to let anyone who wants to make a speech do so, without any standards. There was a committee that looked at a number of factors: existence of campaign committee, fundraising, attendance at county and legislative district conventions, etc. This was the method used at the 2006 Republican State Convention to determine whether a candidate was serious. At past conventions, the party required a petition drive to allow a candidate to speak. Whatever the method, a political convention needs to control who wields the gavel and who gets the endorsement. I would argue that it is more important to avoid meddling by a close ideological cousin like the Libertarians than by the Greens or the Democrats. It is unlikely that leftists could sneak in and steal an endorsement, but right-leaning types might be able to.
It is unfortunate that former Justice Gilbert would intimate that the Republican Party of Minnesota violated the First Amendment by not letting Jeffers speak. Permitting a political party to endorse its chosen candidates and control its own message is exactly what the First Amendment protects. It would be a strange perversion of the First Amendment to read it to require every political convention to open up the microphone to opposing parties.
Actor Steve Talbot portrayed Gilbert Bates on the old Leave it to Beaver television show. Gilbert's catchphrase was "Gee Beav, I don't know." For our own (former Justice) Gilbert, the phrase would be "First Amendment? Gee Beav, I don't know."
Finally, the attack on Governor Pawlenty is misplaced. The First Lady is a sitting judge. The Governor has quietly and respectfully stated his disagreement with the party platform plank on endorsement of judges. Even if he were to charge ahead with this issue, it could be seen as self-serving, given his wife's position.