Litigation

High Court Asked to Weigh Limits on Judicial Speech

By Peter Hardin

Limits on campaign speech for judicial candidates in Indiana and Wisconsin are the subject of an appeal request to the U.S. Supreme Court made by Indiana-based lawyer James Bopp.

Bopp, acting on behalf of some state judges, judicial candidates and an anti-abortion group, has petitioned the high court to review decisions in Seventh U.S. Circuit Court of Appeals rulings this year, according to a National Law Journal article.

In Siefert v. Alexander, an appeals panel ruled that Wisconsin judicial candidates may not endorse partisan candidates for office or directly solicit campaign cash (see Gavel Grab). In Bauer v. Shepard, Indiana Right to Life Inc. unsuccessfully challenged an Indiana ethics rule effectively barring judges from telling their views about abortions (click here for Gavel Grab post.)

Chief Judge Frank Easterbrook of the Seventh Circuit wrote in the Bauer case, “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function.” He added, “Preserving that confidence is a compelling interest.”

Judicial elections scholar James Sample of Hofstra University School of Law wrote about Judge Easterbrook’s views, “I think his opinion is some indication folks like Mr. Bopp represent the ideological extreme position at odds with a majority of Americans on the left and right alike.”

Bopp said the Seventh Circuit rulings don’t square with First Amendment protections of political speech.

According to Sample, a battle is now being waged over the line between two different Supreme Court decisions, Republican Party of Minnesota v. White in 2002 and Caperton v. Massey in 2009.

In the first, the Supreme Court struck down an ethics rule that barred judicial candidates from stating their views ?on disputed legal or political issues.? The ruling dramatically accelerated the politicization of judicial elections.

In the latter, the court found that large judicial campaign expenditures could create an unacceptable potential for bias.

Sample explained, “In the new era of judicial elections, there’s more money involved and greater awareness on the part of stakeholders as to how the system might be gamed. These clauses are in many respects the first line of defense.”

On its issues page about judicial speech, Justice at Stake discusses ways to counter trends since White that can threaten public confidence in fair and impartial courts.

Full post as published by The Gavel on October 01, 2010 (boomark / email).