Judicial Elections in the News...

Recent conferences have focused on judicial elections, both on the question of campaign financing and judicial campaign speech. Ruth Marcus offers this Washington Post column, discussing Factcheck.org's conference and this Brennan Center report. Bob Bauer comments on quotes from Justice O'Connor in the Marcus column. Meanwhile, Jim Bopp has won another judicial speech lawsuit . From his press release:

Federal District Court Judge John Shabaz has granted a permanent injunction against provisions of the Wisconsin Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues. Wisconsin Right to Life had sent a questionnaire to candidates for judicial office in the November 2006 and April 2007 elections requesting that they state their views on policies and court decisions related to such matters as assisted-suicide and abortion. Several of the judicial candidates refused to do so, stating that they could be disciplined for expressing their views by responding the questions posed in such questionnaires. A 2006 opinion by the state's Judicial Conduct Advisory Committee had found that judicial candidates were prohibited from announcing their views on disputed legal and political issues.
The District Court disagreed, finding that the provisions were unconstitutional to the extent that they prohibited candidates from announcing their views. The Court held that one of the provisions of Wisconsin's Code, which required judges to recuse themselves if they had previously made statements that "appear to commit" the judge on issues likely to come before the court, was indistinguishable from a provision struck down by the Supreme Court in 2002. That case, Republican Party of Minnesota v. White, 536 U.S. 765 (2002), found unconstitutional on First
Amendment grounds a Minnesota rule that prohibited judicial candidates from "announcing their views on disputed legal or political issues." Similarly, the Court held that a Wisconsin Code provision prohibiting judicial candidates from making "pledges and promises" regarding future cases could not be used to prohibit candidates from answering Wisconsin Right to Life's questionnaire.

For those wanted a more extended academic treatment of these issues, check out Running for Judge from NYU Press (Matthew Streb, ed.). A draft of my chapter in that book on constitutional limits on judicial speech rules is posted here.

Posted by Rick Hasen at May 31, 2007 09:05 AM