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THERE OUGHT TO BE A LAW: Judge not, lest ye have to fill out more surveys

May 8, 2006

When you voted in the primary May 2, and got to the judicial candidates, did you feel just a little ... oh, what's the right word ... clueless? Uninformed? Ignorant about what any of these people actually thought about anything?

Now some people might have felt that way about many of the candidates. But not you. Being the well-informed voter that you are, you'd already done your homework. Researched the issues. Asked the tough questions. And so you (and maybe you alone) knew exactly where the county surveyor candidates stood on adopting the metric system (to go along with daylight-saving time, after all).

But when you tried to find out how the judicial candidates felt about throwing out speeding tickets, especially when you were just keeping up with traffic and the cop unfairly singled you out and you weren't really going that fast anyway-well, that didn't go so well, did it?

See, it's unethical for someone running for judge to make "pledges or promises of conduct" or to utter statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." In other words, judicial candidates can't tell us how they're going to rule on things. They live under the electoral equivalent of "don't ask, don't tell."

So that's why you know practically nothing about what judicial candidates think. Oh, sure, they might tell you about their adorable family or where they went to law school or how many bar association awards they've received, but otherwise, you're pretty much in the dark. Instead of insights, you get campaign literature like the flier I received from one of the judicial candidates. Its most noticeable feature? A quote from John F. Kennedy's inaugural address. Seriously. As if familiarity with "Bartlett's Familiar Quotations" makes you a good judge. But what else can they do?

Well, a case pending in federal court in Lafayette might unmuzzle all these candidates, just in time for the November elections. But interestingly, it's not the judges who are clamoring for this right-instead, it's a special-interest group that wants to quiz judicial candidates about their views on abortion, same-sex marriage and other "disputed legal and political issues."

Now, it's true that under the judicial canons of ethics, a candidate can state her general views on such issues by characterizing herself as "conservative," "soft on crime," "pro-life," etc. But apparently those generalities were not specific enough for Indiana Right to Life.

Before the 2004 election, Right to Life sent out a "judicial candidate questionnaire" that asked potential judges whether they agreed, disagreed or were undecided on numerous questions such as, "I believe that the Indiana Constitution does not require that same-sex couples be permitted to enter into civil unions that encompass those state rights that attach to legal marriage."

Frankly, that issue doesn't come up much in traffic court, but still, several candidates called the Commission on Judicial Qualifications (the body that governs judges' conduct) for guidance on whether they could respond to the questionnaire. Short answer: no. As a result, Right to Life filed this lawsuit, claiming the campaign restrictions violate the First Amendment rights of both the candidates and the public.

The group might have a point: Recent U.S. Supreme Court cases have struck down rules in other states that forbid judges' "announcing their positions" on issues, engaging in partisan activity, and seeking campaign contributions. The parties have fully briefed the constitutional issues, and the case is set for hearing in July.

So what happens if the judge strikes down the restrictions? In the short term, the interest groups will certainly get their hotbutton surveys in the mail. And then what? Well, in 2004, the National Law Journal ran a story titled "Judicial Races Get Meaner" that documented millions of dollars spent on attack ads in judicial races in Illinois, Ohio and other states-money coming from chambers of commerce, trial lawyers, doctors, insurance groups and the like. Will all this be coming soon to a judicial race near you?

And should we worry that all this electioneering will taint the public's perception of an impartial judiciary? The U.S. Supreme Court doesn't seem too concerned; in a recent case, the court said that "one would be naïve not to recognize that campaign promises are-by long democratic tradition-the least binding form of human commitment."

So that's the new constitutional standard-the public shouldn't be concerned about the statements judicial candidates might make because you can't believe what they say in a campaign, anyway? Let's hope not.

Call me old-fashioned, but if I'm standing in the courtroom, hand on a Bible, swearing to tell the truth, the whole truth and nothing but the truth, I'd like to think our election rules will encourage the candidates in black robes to do the same.



Gifford is a partner at the law firm of Baker & Daniels in Indianapolis. His column appears monthly. This article is provided for general information purposes only and should not be regarded as legal advice for any particular situation. Gifford can be reached at 237-1409 or at ron.gifford@bakerd.com.
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