On a recent campaign stop, Latrice Westbrooks spoke before the Greenwood Voters League. Westbrooks is challenging incumbent Judge E.J. Russell for a seat on the Mississippi Court of Appeals. Ceola James, a former chancery judge, is also running.

The Greenwood Commonwealth covered the speech: "Latrice Westbrooks isn't running as a Democrat or Republican because judicial elections are officially nonpartisan. But the Jackson attorney made it clear where she stands in her race for the Mississippi Court of Appeals Wednesday night to the Greenwood Voters League. 'What I will tell and what I can tell you is that I do support our president, and I also support our congressman, Bennie Thompson,' Westbrooks said, referring to two Democrats.  'Let me also say that my opponent [Russell] was appointed by Haley Barbour a year ago, and she was also appointed by Kirk Fordice in the late 90s as a circuit court judge.' Barbour and Fordice were both former Republican governors."

The Commonwealth wrote in an editorial, "Judicial candidates in Mississippi are supposed to run without party labels. The theory is that nonpartisan elections will insulate the bench - which is supposed to be impartial in the administering of justice -from politics. The practice is a facade. Many candidates running for the bench - or their supporters - let voters know in which political camp they lean."

The Commonwealth correctly describes that attempt to insulate judicial elections from partisanship as a "façade." The Mississippi legislature created this façade in 1998 to stem the rising tide of Republican judicial victories. Then Governor Kirk Fordice vetoed the switch of judicial elections from partisan to nonpartisan, but the legislature over turned his veto.

The legislature eliminated the political shorthand of describing a judge as a Republican or Democrat. But the Mississippi Republican Party filed suit in federal court and won and preserved its right to speak on judicial elections. The MSGOP can endorse and spend money on promoting a judicial candidate, but that judicial candidate cannot claim to be a Republican. A candidate can show voting records in party primaries; produce campaign finance reports showing contributions to parties; can note former leadership positions in a party; but in the face of these facts must maintain nonpartisanship.

This is just one of the ridiculous facades created in attempt to insulate a politically elected office from political elections.

A judicial candidate can be pro-life, but can't promise to decide cases on being pro-life. Promising to be "tough on crime" suggests a predetermined decision and arguably a pledge in conflict with the Mississippi Code of Judicial Conduct. Promising to be "fair on crime" just doesn't have the same electoral ring. I believe, within in judicial discretion, one can be both fair and tough - but no campaign wants even an accusation of unethical campaigning when running for a judgeship.

Despite the fact that negative advertising works and people relish in the trivial goofs of campaigns, people claim they want candidates to run on the issues. In Mississippi judicial elections, candidates can say they believe in certain issues, but they have to disclose they can't use those beliefs if elected.

The major issue in judicial campaigns that candidates are allowed to use is that they will be fair and decide cases on the law and the facts. How do you campaign on being fair, more fair, less fair or most fair? Money. In the four races for Supreme Court in 2008, each candidate that raised the most money won.

I don't blame the Westbrooks campaign for attempting to communicate to Greenwood voters she falls on the Democratic side of politics. Everyone wants to know if a candidate is on their side. Unfortunately for her, as she attempted to thread the needle of being nonpartisan and appealing to Democrats, she may have violated another judicial rule. The Code of Judicial Conduct prohibits a candidate for judicial office from publicly endorsing another candidate for public office: candidates like Barack Obama or Bennie Thompson.

Electing state judges is perhaps the worst way to select impartial candidates for the bench, except for every other way. Appointing judges is just as political - whether it is by a committee or an elected executive- yet it lacks the stamp of democracy.

If we're going to elect judges, we should free those candidates from speech gags that prevent or limit their dialogue with voters. Voters should decide if they want a fair judge, or for that matter, a biased judge.

When a candidate can't speak, other groups not controlled or endorsed by the candidate speak instead. When a candidate can't speak, incumbency and name identification rule, or else, we encourage prolific fundraising to be spent on issueless messages. When a candidate can't speak, voters are ill-informed of their choices.

The real façade is pretending any election can be separated from politics.



Brian Perry is a partner in a public affairs firm. Contact him at reasonablyright@brianperry.ms or @CapstonePerry on Twitter.