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).

The Sound of Silence

"A three judge panel from the 5th US Circuit Court of Appeals ...upheld a district court ruling ..that (a Texas law requiring students to observe a daily minute of silence in order to pray, reflect or otherwise remain quiet) is constitutional."
Associated Press, March 17, 2009

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."
First Amendment to the Constitution of the United States

In making this ruling, the 5th Circuit concurred with the 4th Circuit, which upheld a similar law in Virginia. Both courts ruled, in effect, that a minute of silence is not equivalent to school-sponsored prayer, which the US Supreme Court found unconstitutional in Engel v Vitale (1) in 1962. Speaking for the Court, Justice Hugo Black asserted that even voluntary, non-denominational prayer could not be legally instituted in public schools without violating the Establishment Clause quoted above.

Since Engel was decided in 1962, there have been efforts to amend the US Constitution to overturn it and permit some form of state-sponsored prayer in public schools. President Ronald Reagan endorsed the Prayer Amendment, but did not use his substantial political clout to advance it. Not only has the Prayer Amendment gone nowhere, but subsequent court rulings have extended the ban to student-led prayer, if it is part of an official public school activity.

Meanwhile, the singing of Christmas carols in the public schools goes on unchallenged, even though the lyrics advocate a specifically Christian message. As a public school student, I was urged to sing that Jesus was born of a virgin (Silent Night), that he was born the king of angels (Come, All Ye Faithful) and that he died to make men holy (Battle Hymn of the Republic (2)). In my view, a religious message set to music is just as inappropriate for a public school as one recited.

The plaintiffs in the Texas case, David and Shannon Croft of Carrollton, contended that because the law in question suggested that students could use the silent period to pray, the law advanced religion in the public schools. Although I consider myself among the most militant in opposition to government sponsorship of religion, I part company with the Crofts on this one and consider the decision of the 5th Circuit correct.

Despite propaganda otherwise, no American court has ever prohibited students from praying in the public schools. In fact, a law that banned prayer would violate the Free Exercise Clause of the First Amendment. As a student at Steuben Jr HS and Washington HS, I said brachos (blessings) and bircas hamazon (grace after meals) every day in the lunchroom with a yarmulke on my head; no one ever stopped me. The issue is, and always was, teacher-led prayer, and silence is simply not prayer at all. Under the Texas statute, students are free to meditate and contemplate anything they like during the silent period, and no one has any way of knowing what (if anything) they are thinking about.

I do not agree that simply giving people an opportunity to pray in a government-controlled setting is establishment of religion. For example, a public hospital or airport could legally provide a room for prayer or contemplation, provided that no religious symbols are displayed or religious texts provided.

Critics of the Texas law assert that the "Minute of Silence" is an attempt to sneak prayer into the public schools. I do not dispute this contention, but I believe that the method chosen avoids the discriminatory consequences of state-sponsored prayer, and so is legal. I would not have supported passage of the law because I see no need for a statewide mandate for the period of silence; if needed at all (and I do not believe it is), the need should be determined by local school boards. But the place to oppose it is the legislature, not the federal courtroom.

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(1) 370 US 421 (1962)

(2) OK, the Battle Hymn is not a Christmas carol, but it is a song with a strong Christian message taught in the public schools.