Judges Have First Amendment Rights, Too

     (CN) – Judicial candidates can no longer dodge the “political minefield” created by an Indiana pro-life group’s survey after the 7th Circuit found that completing the questionnaire is a permissible expression of a judge’s First Amendment rights.




     Indiana Right to Life sends judicial candidates a survey asking whether they subscribe to propositions such as, “I believe that the unborn child is biologically human and alive and that the right to life of human beings should be respected at every stage of their biological development.”
     Many judges simply ignore the survey, but others had claimed that completing it would violate the prohibition of “commitments that could compromise impartiality” in Indiana’s Code of Judicial Conduct.
     Right to Life recruited Torrey Bauer, a candidate for judicial office, and David Certo, a sitting judge in the Marion Superior Court, and sued the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission over the state’s code.
     Chief Judge Frank Easterbrook found no legal conflict with the survey.
     “The [survey] concerns morals, not conduct in office,” Easterbrook wrote. “Statements of views on moral and legal subjects do not imply that the speaker will act in accord with his preferences rather than the law.”
     Despite Certo’s requests, the court also upheld fundraising restrictions that prevent judges from personally soliciting donations from family and former classmates.
     “[T]he potential for actual or perceived mutual back scratching, or retaliation against attorneys who decline to donate… is the same whether or not the judge knows the potential donor’s first name,” Easterbrook wrote.
     The court also held that the prestige of judicial office should not be used to assist other people, excluding leadership within a political organization. Limited circumstances exist when a judge can speak in favor of a political party, but only as determined by the Commission of Judicial Qualifications.
     “Laws need not contain exceptions for every possible situation in which the reasons for their enactment are not present,” Easterbrook wrote. “A federal court should not assume that a state will act unreasonably.”
     Easterbrook continued: “The judicial system depends on its reputation for impartiality; it is public acceptance, rather than the sword or the purse, that leads decisions to be obeyed and averts vigilantism and civil strife.”.
     But he added, “When a state requires judges to stand for office, it cannot insist that candidates remain silent about why they, rather than someone else, should be elected.”

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