Tuesday, December 11, 2012

Judicial elections and promises

Did Supreme Court candidate Vince Megna violate the Judicial Code of Ethics in saying that he is a Democrat, opposes voter ID and would, if elected to the Court, vote against vote suppression?

There are two issues.

The first is easy. The Code (to which all candidates for judicial office are subject) says that a judge may not be a member of a political party. But this prohibition was declared unconstitutional in a case called Siefert v. Alexander. Megna can say he is a Democrat. Whether he should call attention to his partisan affiliation is another question. Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office.

The second issue is whether Megna's comments on voter ID were improper.The United States Supreme Court has made clear that a candidate for judicial office may express his or her opinion on disputed legal or political issues. But it has left open the possibility that a state may restrict a judicial candidate or judge from promising to rule in a particular way. Wisconsin does prohibit a candidate from making "pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office."

So, while it may be acceptable for a candidate to express a view on, say, the existence or nonexistence of a constitutional right to bargain collectively, it is not acceptable for a candidate to commit to overrule - or uphold - Act 10.

The distinction may seem to be overly fine but it is rooted in reality. It is disingenuous for candidates to pretend they have no opinion about critical questions. If. for example,  I really have no  view on the great legal issues of the day, then I am probably unqualified to be a candidate for the state supreme court.

On the other hand, I ought to be willing to be consider arguments from the other side. I should be open to persuasion.

Megna stretched that distinction. Having all but called voter ID requirements a form of "voter suppression," he then promises to vote to overturn "voter suppression" laws. He may not have crossed the line but he came very close. However, he then backed away noting that "every case comes down to the facts of the case and the arguments and the law."

So, taking his comments in context, I would argue that the rules were not broken. On the other hand, most candidates would not comment so directly on an issue that is almost certain to come before the court in the near future.

 A related - but distinct - question is whether his comments would lead to an obligation to recuse himself in a voter ID case.

Cross posted at Purple Wisconsin.


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Anonymous said...

"Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office."

Professor, with all due respect, you make this cavalier statement without any evidence to back it up. Do you expect your students to offer such a flimsy position without adequate support?