Blogging lawyer Illusory Tenant still professes to be confused by why anyone could possibly object to the state bar using mandatory dues from all practicing lawyers in the state to police speech in the state Supreme Court race.
Let me try one more time. IT wonders what the big deal is because the WJCIC is only asking the candidates to sign on to whatever regulation of speech is already embodied in Chapter 60 of the Supreme Court rules and who could object to that?
There are two problems with this. One is that people do object to the SCRs - at least as they have been interpreted by the Judicial Commission. Last year, a federal court in Madison held the rules to be unconstitutional if applied to prohibit candidates from stating their position on a series of contested issues.
But, IT will say, the agreement says "there is "no intent" to impose standards that are stricter than the Constitution. But, if we can't simply read the SCRs as written and believe that they comply with the Constitution, then an agreement that holds them up as the gold standard is of limited value.
But that's not the big problem. The WJCIC does not, as IT implies, simply offer this agreement and promise to go away, To the contrary, it offers itself as the arbiter of what the agreement - or the SCRs - require.
Some people have pointed out the political imbalance in the committee. I can't imagine why the people who put it together didn't see that as a problem. But I think we have far more direct evidence for the proposition that the WJCIC ought not to be accepted as possessing any more authority than, say, my blog or Tenant's.
The WJCIC has given us an example of how it read the SCRs. This is where the Basting standard comes in.
State Bar President Tom Basting, writing on behalf of the committee, thinks it is a violation of the rules for a candidate to characterize his opponents positions as consistently siding with defendants. This, he says, calls into question a judicial candidate's impartiality. How far Mr. Basting would take this is unclear, but another blogging lawyer, Mike Plaisted, says that it would prohibit a candidate from saying that his opponent "frequently misreads the law to expand the rights of criminal defendants and to impair the function of law enforcement."
I have explained elsewhere why I think both are wrong - as an interpretation of the SCRs, as a matter of policy and as a measure of what ought to be constitutionally protected discourse. I have tried to point out that it does not reflect the way in which the public, lawyers and even legal academics talk about judges. It handicaps public debate on issues that matter and imposes an etiquette on discourse that we are generally able to see as chilling in other contexts. Given the rather clear suggestion that the WJCIC intends to read the rules in this way, I would not suggest that either candidate sign on to the agreement or confer legitimacy on the WJCIC as some neutral arbiter as to what can or cannot be said.
Whether or not I am right has nothing to do with the Federalist Society or WMC or any other interested party in the supreme court race. I am not "put up" to this view by any of them nor do I adopt it in furtherance of some undisclosed support for any candidate. Any one who has read this blog would now that, when it comes to political speech, I am a near absolutist.
This doesn't mean that I think anything goes or that all things said in the course of a campaign are fair. I think that people who engage in political debate would generally benefit from a dose of intellectual honesty and courtesy. As I have said there are often problems in the way that decisions regarding matters of criminal procedure are discussed in public (although these problems really have nothing to do with the SCRs or questioning impartiality or judicial dignity; they are substanive - the public values procedural rights less than lawyers (including this one) do.)
But I do not trust the state or a truth squad that imbues itself with a patina of neutrality and claims to be engaged in the disinterested application of objective standards with some special authority to declaim on these matters.