Party Time for Judges?
"Wisconsin Atty. Gen. J B Van Hollen ...(will) appeal a federal court ruling that state judges could join political parties, solicit campaign contributions, and endorse partisan candidates."
Milwaukee Journal Sentinel, March 20, 2009
US Western District Judge Barbara Crabb ruled last month in Seifert v Alexander (1) that the limitations on political activity noted above were unconstitutional infringements on judges' right to freedom of speech under the First Amendment. Circuit Judge John Seifert of Milwaukee County brought the action against James Alexander, the Executive Director of the Wisconsin Judicial Commission. The rules in question were imposed by the Wisconsin State Supreme Court.
Judges, like all other Americans, have opinions on the big issues of the day such as abortion rights, gun control, same-sex marriage and so on. Off the bench, they have the right to express their opinions through speeches, letters and other means. The Judicial Code of Conduct even permits judges to participate in organizations which support a legislative agenda, such as the Milwaukee Jewish Council for Community Relations. (2)
The rule prohibiting judges from joining a political party is narrowly tailored to achieve a worthy public purpose: to distance judges from partisan activities that might influence (or reasonably appear to influence) their decisions. When partisan officials are involved in a lawsuit or criminal case, the state has a compelling interest in preventing partisan considerations from creating the appearance of bias. For example, if a Republican legislator is accused of misconduct in office, should the case be tried by Democratic or Republican judge?
The rule against solicitation of political contributions by judges is even more essential. Suppose you practice law in Washburn County, and the only judge in the County calls you for a donation to his next campaign. How comfortable would you be in turning him down? The Court ruled that since judges have access to lists of donors to their campaign committee, the rule prohibiting personal solicitation does nothing to prevent pressuring of lawyers (or litigants) into coughing up contributions; I would contend that personal solicitation by a judge is far more intimidating than a letter or call from the campaign committee, and should be banned. Some judges even recuse (disqualify) themselves from hearing cases involving parties who have made unsolicited contributions to their past campaigns. (3)
In her ruling Judge Crabb cited Republican Party of Minnesota vs White (4), in which the US Supreme Court invalidated a judicial ethics rule in that state that barred candidates for judicial offices from even "announcing their views on political and legal issues." But if the Minnesota rule went too far in infringing on the right to free speech, the Wisconsin rules do not. The courts have ruled that people in certain positions, such as federal civil service employees, in effect give up some political rights to accept such positions. Moreover, American soldiers can be court-martialed for publicly insulting the President of the United States, a right most Americans consider priceless. All federal and state laws limiting campaign contributions also limit political speech, but I do not believe that they are all unconstitutional (though some people do!)
Since I am neither a lawyer nor an expert on constitutional rights, I cannot determine that Seifert was wrongly decided, but I contend that the decision removes some valuable safeguards for the objectivity of our judiciary. So, I am glad that the Attorney General of Wisconsin is appealing the case to the Seventh Circuit, and hope that the judges there find just cause to reverse Judge Crabb.
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(1) 08-CV-126
(2) Circuit Judge Charles Kahn and retired US District Judge Myron Gordon have served on the MJCCR.
(3) Then Circuit Judge Rudolph Randa recused in the 1985 case of Wauwatosa v Glazer because I had contributed $5 to his 1975 campaign for Milwaukee Municipal Judge. He had a good memory, as well as a strict standard of judicial ethics!
(4) 536 US 765 (2002).
Milwaukee Journal Sentinel, March 20, 2009
US Western District Judge Barbara Crabb ruled last month in Seifert v Alexander (1) that the limitations on political activity noted above were unconstitutional infringements on judges' right to freedom of speech under the First Amendment. Circuit Judge John Seifert of Milwaukee County brought the action against James Alexander, the Executive Director of the Wisconsin Judicial Commission. The rules in question were imposed by the Wisconsin State Supreme Court.
Judges, like all other Americans, have opinions on the big issues of the day such as abortion rights, gun control, same-sex marriage and so on. Off the bench, they have the right to express their opinions through speeches, letters and other means. The Judicial Code of Conduct even permits judges to participate in organizations which support a legislative agenda, such as the Milwaukee Jewish Council for Community Relations. (2)
The rule prohibiting judges from joining a political party is narrowly tailored to achieve a worthy public purpose: to distance judges from partisan activities that might influence (or reasonably appear to influence) their decisions. When partisan officials are involved in a lawsuit or criminal case, the state has a compelling interest in preventing partisan considerations from creating the appearance of bias. For example, if a Republican legislator is accused of misconduct in office, should the case be tried by Democratic or Republican judge?
The rule against solicitation of political contributions by judges is even more essential. Suppose you practice law in Washburn County, and the only judge in the County calls you for a donation to his next campaign. How comfortable would you be in turning him down? The Court ruled that since judges have access to lists of donors to their campaign committee, the rule prohibiting personal solicitation does nothing to prevent pressuring of lawyers (or litigants) into coughing up contributions; I would contend that personal solicitation by a judge is far more intimidating than a letter or call from the campaign committee, and should be banned. Some judges even recuse (disqualify) themselves from hearing cases involving parties who have made unsolicited contributions to their past campaigns. (3)
In her ruling Judge Crabb cited Republican Party of Minnesota vs White (4), in which the US Supreme Court invalidated a judicial ethics rule in that state that barred candidates for judicial offices from even "announcing their views on political and legal issues." But if the Minnesota rule went too far in infringing on the right to free speech, the Wisconsin rules do not. The courts have ruled that people in certain positions, such as federal civil service employees, in effect give up some political rights to accept such positions. Moreover, American soldiers can be court-martialed for publicly insulting the President of the United States, a right most Americans consider priceless. All federal and state laws limiting campaign contributions also limit political speech, but I do not believe that they are all unconstitutional (though some people do!)
Since I am neither a lawyer nor an expert on constitutional rights, I cannot determine that Seifert was wrongly decided, but I contend that the decision removes some valuable safeguards for the objectivity of our judiciary. So, I am glad that the Attorney General of Wisconsin is appealing the case to the Seventh Circuit, and hope that the judges there find just cause to reverse Judge Crabb.
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(1) 08-CV-126
(2) Circuit Judge Charles Kahn and retired US District Judge Myron Gordon have served on the MJCCR.
(3) Then Circuit Judge Rudolph Randa recused in the 1985 case of Wauwatosa v Glazer because I had contributed $5 to his 1975 campaign for Milwaukee Municipal Judge. He had a good memory, as well as a strict standard of judicial ethics!
(4) 536 US 765 (2002).
posted by Gerald S Glazer at 10:58 AM
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