This week, the filing period opens for many legislative and state offices. Judges, too, must run for election every six years. This would normally be my year to run, but I have submitted my letter of retirement to the Governor and he has declared my seat to be open and filled by appointment after I retire in a few weeks.
It accurate to say that many candidates have had some degree of political activity. When I was appointed in 1988, a condition of becoming a judge was to give up partisan politics. We could not make contributions to candidates, put up a sign on our lawns supporting a candidate, make endorsements, attend their rallies or even attend a caucus. Frankly, about the only political thing we could do was vote.
And this was just fine with me. Honestly, I did not want anyone who may appear before me to wonder if I were playing politics with the important matter that was being presented. I have endeavored to treat all persons appearing before me equally: Members of the party I used to belong to, as well as members of the opposing party; rich or poor; Caucasian or minority; etc.
The United States Supreme Court has ruled that I now may participate at least to a limited degree in political discourse. Judges and candidates for judgeships may seek political endorsements from parties, for instance. The public has a right to know where a judge or judicial candidate stands when deciding which judicial candidate to vote for.
While it is true that there is not a lot of information available to voters when casting their ballots for judges, I still think it is a mistake to announce a position on any of the “hot button” issues that may arise in a judicial election. There are two reasons for this: 1) If that issue subsequently comes before the judge, there would be a legitimate question about how fair and impartial the judge could be, given the previous statements and 2) More importantly, judicial decisions more often than not turn on a fact or detail specific to the case before the court. It is just impossible to predict what given set of facts may be presented to a judge in any case.
If a judge a pre-announced an intention to rule one way or the other, the judge may certainly be disinclined to go against the pre-announced position rather than appear to have “broken a campaign promise”.
It is a mistake to insert judges into partisan political election campaigns.
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Next week: I Always Wear This Dress to Court