Judges – Elections – Partisan Affiliation, Endorsements
The judicial candidate partisan affiliation ban, SCR 60.06(2)(b)1, violates the first amendment.
The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position. But that is the purported compelling state interest that White I squarely rejected. 536 U.S. at 777-78. The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy. Nor can casting the argument in terms of the “appearance of bias” save it—because “avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest either.” Id. at 778.
Different context but same point, really: Sherwin-Williams Co. v. Adelman, No. 10-1638, 6/7/10 (judicial authorship of law review article discussing state court opinion didn’t require recusal of that judge when that case arrived in his court: “someone who … knew that federal judges may speak, write, and participate in other activities concerning the legal issues of the day, see Code of Conduct for United States Judges, Canon 4A(1), would find nothing unseemly about Judge Adelman publishing a law review article on the topic”). Also, if you listen hard enough, you can hear echoes of our yet-to-be-resolved recusal fall-out from the last (supposedly non-partisan) election: “Just as Judge Adelman should not recuse himself from all lead paint cases because he publicly defended the court’s 04-05 lead paint case, so Justice Gableman should not recuse himself from all criminal cases because he publicly criticized the court’s 04-05 criminal cases.” So says Daniel Suhr, anyway; though, as the comments underneath that post explain, one really has nothing to do with the other.